UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange
Act of 1934
Date of Report: January 22, 2016
(Date of earliest
event reported)
US GEOTHERMAL INC.
(Exact
name of registrant as specified in its charter)
Delaware |
001-34023 |
84-1472231 |
(State of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.)
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390 E Parkcenter Blvd, Ste 250, Boise, Idaho 83706
(Address of principal executive offices) (Zip Code)
208-424-1027
(Registrants telephone number,
including area code)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
[ ] |
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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[ ] |
Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 |
Entry into a Material Definitive
Agreement. |
On January 22, 2016, U.S. Geothermal Inc. (the Company)
entered into a purchase agreement (the Purchase Agreement) with Lincoln Park
Capital Fund, LLC (LPC), pursuant to which the Company has the right, in its
sole and absolute discretion, to sell to LPC up to $10,000,000 of shares of the
Companys common stock, par value $0.001 per share (Common Stock), subject to
certain limitations and conditions set forth in the Purchase Agreement and
imposed by the Companys board of directors and pricing committee thereof.
Pursuant to the Purchase Agreement, upon the satisfaction of
both the conditions to the Companys right to commence sales under the Purchase
Agreement and the conditions to LPCs obligation to purchase under the Purchase
Agreement, LPC is obligated to initially purchase $650,000 in shares of Common
Stock at a price equal to $0.59 per share. Thereafter, on any business day and
as often as every business day over the 30-month term of the Purchase Agreement,
and up to an aggregate amount of an additional $9,350,000 (subject to certain
limitations) in shares of Common Stock, the Company has the right, but not the
obligation, at its sole discretion and subject to certain conditions, to direct
LPC, by notice from time to time, to purchase up to 250,000 shares of Common
Stock, which amount may be increased in accordance with the Purchase Agreement
if the closing sale price of Common Stock on the NYSE MKT LLC exceeds certain
specified levels. Provided, however, that the Company shall not issue or sell
and LPC shall not purchase or acquire any shares of Common Stock under the
Purchase Agreement which, when aggregated with all other shares of Common Stock
beneficially owned by LPC and its affiliates, would result in LPC and its
affiliates beneficially owning more than 9.99% of the then issued and
outstanding shares of Common Stock. The purchase price of shares of Common Stock
pursuant to the Purchase Agreement will be based on prevailing market prices of
Common Stock at the time of sales without any fixed discount, and the Company
will control the timing and amount of any sales of Common Stock to LPC.
All shares of Common Stock to be issued and sold to LPC under
the Purchase Agreement will be issued pursuant to the Companys effective shelf
registration statement on Form S-3 (Registration No. 333-192611), filed with the
Securities and Exchange Commission in accordance with the provisions of the
Securities Act of 1933, as amended, and declared effective on February 4, 2014,
and the prospectus supplement thereto dated January 25, 2016.
The Company intends to use the net proceeds from the sale of the securities pursuant to the Purchase Agreement to fund the recent acquisition from Goldman Sachs of the majority of their cash flow interest in and ownership of the Raft River geothermal project, support ongoing development projects and for general corporate purposes.
The Purchase Agreement contains customary representations,
warranties and agreements of the Company and LPC, limitations and conditions to
completing future sale transactions, indemnification rights and other
obligations of the parties. There is no upper limit on the price per share that
LPC could be obligated to pay for Common Stock under the Purchase Agreement. LPC
shall not have the right or the obligation to purchase any shares of Common
Stock if the purchase price of those shares, determined as set forth in the
Purchase Agreement, would be below $0.25 per share. The Company has the right to
terminate the Purchase Agreement at any time, at no cost or penalty. Actual
sales of shares of Common Stock to LPC under the Purchase Agreement will depend
on a variety of factors to be determined by the Company from time to time,
including, without limitation, market conditions, the trading price of the
Common Stock and determinations by the Company as to available and appropriate
sources of funding for the Company and its operations. As consideration for
entering into the Purchase Agreement, the Company has agreed to issue to LPC 362,115 shares of Common
Stock. The Company will not receive any cash proceeds from the issuance of these
362,115 shares.
2
The Company has entered into an agreement with Drexel Hamilton,
LLC (Drexel), a registered broker-dealer and FINRA member, pursuant to which
Drexel agreed to act as the placement agent in connection with the sale of
shares of Common Stock to LPC. Subject to the Companys and Drexels receipt of
written confirmation that the Corporate Finance Department of Financial Industry
Regulatory Authority, Inc. (FINRA) has determined not to raise any objection
with respect to the fairness or reasonableness of the compensation terms of the
Companys arrangement with Drexel, the Company will pay Drexel a cash fee of
$15,000 in compensation for its services in acting as placement agent in the
sale of Common Stock to LPC.
This current report on Form 8-K shall not constitute an offer
to sell or a solicitation of an offer to buy any shares of Common Stock, nor
shall there be any sale of shares of Common Stock in any state or jurisdiction
in which such an offer, solicitation or sale would be unlawful prior to
registration or qualification under the securities laws of any such state or
other jurisdiction.
The Purchase Agreement is filed as Exhibit 10.1 to this current
report on Form 8-K and incorporated herein by reference. The foregoing
description of such agreement and the transaction contemplated thereby is
qualified in its entirety by reference to such exhibit. In addition, the
Purchase Agreement has been included to provide investors with information
regarding its terms. The Purchase Agreement is not intended to provide any other
factual information about the Company. Accordingly,
investors should not rely on the representations and warranties as
characterizations of the actual state of facts at the time they were made or
otherwise.
The information set forth in Item 1.01 is incorporated herein
by reference. The Company is filing the opinion of its counsel, Dorsey &
Whitney LLP, relating to the legality of the issuance and sale of the shares of
Common Stock pursuant to the Purchase Agreement, as Exhibit 5.1 hereto. Exhibit
5.1 is incorporated herein and into the Registration Statement by reference.
On January 25, 2016, the Company issued a press release
announcing the execution of the Purchase Agreement. A copy of the press release
is attached as Exhibit 99.1 hereto.
As previously announced, we have engaged Marathon Capital to investigate strategic alternatives. While there have been preliminary discussions with a number of parties, the Company is not currently engaged in negotiations with any party with respect to a potential transaction as part of the strategic evaluation and has not entered into any agreement with respect to any such proposed transaction.
Item 9.01 |
Financial Statements and Exhibits.
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(d) Exhibits.
3
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Exhibits are hereby incorporated by reference as exhibits
to the Companys registration statement on Form S-3 (Registration No.
333-192611), which was filed with the Securities and Exchange Commission
on November 29, 2013, amended on January 22, 2014 and declared effective
on February 4, 2014, pursuant to the Securities Act of 1933, as amended.
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4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: January 25, 2016 |
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U.S. Geothermal Inc. |
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By: |
/s/ Kerry D. Hawkley |
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Kerry D. Hawkley |
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Chief Financial Officer |
5
January 25, 2016 |
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U.S. Geothermal Inc. |
390 E. Parkcenter Blvd., Ste. 250 |
Boise, Idaho 83706 |
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Re: |
Securities Registered under Registration
Statement on Form S-3 |
Ladies and Gentlemen:
Reference is made to our opinion letter dated November 27, 2013
and included as Exhibit 5.1 to the Registration Statement on Form S-3 (the
Registration Statement) filed on November 29, 2013, as amended on January 22,
2014, by U.S. Geothermal Inc., a Delaware corporation (the Company), with the
Securities and Exchange Commission (the SEC) under the Securities Act of 1933,
as amended (the Securities Act), for the registration of, among other things,
shares of common stock, $0.001 par value per share (the Common Stock). The
Registration Statement was declared effective by the SEC on February 4, 2014. We
are delivering this supplemental opinion letter in connection with the
prospectus supplement (the Prospectus Supplement) filed on January 25, 2016 by
the Company with the SEC pursuant to Rule 424 under the Securities Act. The
Prospectus Supplement relates to the offering by the Company, from time to time,
pursuant to the Registration Statement of shares of Common Stock (the Shares)
having an aggregate value of up to $10,225,000. We understand that the Shares
are to be offered and sold in the manner described in the Prospectus Supplement.
We have reviewed such documents and made such examination of
law as we have deemed appropriate to give the opinion expressed below. We have
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures and the conformity to authentic originals of all
documents submitted to us as copies. We have also assumed the legal capacity for
all purposes relevant hereto of all natural persons and, with respect to all
parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or otherwise)
to execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. We have also assumed that Purchase Notices and Accelerated
Purchase Notices (each, as defined in the Purchase Agreement, dated as of
January 22, 2016, by and between the Company and Lincoln Park Capital Fund, LLC
(the Purchase Agreement)), if any, will be delivered in accordance with the
terms of the Purchase Agreement and the authority granted by the Companys board
of directors and pricing committee thereof. We have relied, without independent
verification, on certificates of public officials and, as to matters of fact
material to the opinion set forth below, on certificates of officers of the
Company.
The opinion expressed below is limited to the Delaware General
Corporation Law (which includes applicable provisions of the Delaware
Constitution and reported judicial decisions interpreting the Delaware General
Corporation Law and the Delaware Constitution).
January 25, 2016
Page 2
Based on the foregoing, we are of the
opinion that:
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1. |
the Shares have been duly authorized; |
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2. |
upon issuance and delivery of the Shares against payment
therefor in accordance with the terms of the Purchase Agreement, such
Shares will be validly issued, fully paid and
non-assessable. |
We hereby consent to the inclusion of this opinion as Exhibit
5.1 to the Registration Statement and to the references to our firm under the
caption Legal Matters in the Registration Statement. In giving our consent, we
do not admit that we are in the category of persons whose consent is required
under Section 7 of the Securities Act or the rules and regulations thereunder.
We disclaim any obligation to advise you of any subsequent changes in the facts
stated or assumed herein or of any subsequent changes in applicable laws that
might affect any matter or opinion set forth herein.
Sincerely,
/s/ Dorsey & Whitney LLP
Dorsey & Whitney LLP
DORSEY & WHITNEY LLP
Execution Copy
PURCHASE AGREEMENT
PURCHASE AGREEMENT (the Agreement), dated as of
January 22, 2016, by and between U.S. GEOTHERMAL INC., a Delaware
corporation, (the Company), and LINCOLN PARK CAPITAL FUND, LLC,
an Illinois limited liability company (the Investor).
WHEREAS:
Subject to the terms and conditions set forth in this
Agreement, the Company wishes to sell to the Investor, in its sole and absolute
discretion, and the Investor wishes to buy from the Company, up to Ten Million
Dollars ($10,000,000) of shares of the Companys common stock, $.001 par value
per share (the Common Stock). The shares of Common Stock to be
purchased hereunder (including, without limitation, the Initial Purchase Shares
(as defined herein)) are referred to herein as the Purchase Shares.
NOW THEREFORE, in consideration of the mutual covenants
contained in this Agreement, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Company and the
Investor hereby agree as follows:
1.
CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have
the following meanings:
(a)
Accelerated Purchase Share Amount means, with respect to any
Accelerated Purchase made pursuant to Section 2(b) hereof, the number of
Purchase Shares directed by the Company to be purchased by the Investor on an
Accelerated Purchase Notice, which number of Purchase Shares shall not exceed
the lesser of (i) 300% of the number of Purchase Shares directed by the Company
to be purchased by the Investor pursuant to the corresponding Regular Purchase
Notice for the corresponding Regular Purchase referred to in Section 2(b) hereof
(subject to the Purchase Share limitations contained in Section 2(a) hereof) and
(ii) the Accelerated Purchase Share Percentage multiplied by the trading volume
of the Common Stock on the Principal Market during normal trading hours on the
Accelerated Purchase Date.
(b)
Accelerated Purchase Date means, with respect to any Accelerated
Purchase made pursuant to Section 2(b) hereof, the Business Day immediately
following the applicable Purchase Date with respect to the corresponding Regular
Purchase referred to in Section 2(b) hereof.
(c)
Accelerated Purchase Notice means, with respect to any
Accelerated Purchase made pursuant to Section 2(b) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to buy a
specified Accelerated Purchase Share Amount on the applicable Accelerated
Purchase Date pursuant to Section 2(b) hereof at the applicable Accelerated
Purchase Price.
(d)
Accelerated Purchase Share Percentage means, with respect to any
Accelerated Purchase made pursuant to Section 2(b) hereof, thirty percent (30%).
(e)
Accelerated Purchase Price means, with respect to any particular
Accelerated Purchase made pursuant to Section 2(b) hereof, the lower of (i)
ninety-seven percent (97%) of the VWAP during (A) the entire trading day on the
Accelerated Purchase Date, if the volume of shares of Common Stock traded on the
Principal Market on the Accelerated Purchase Date has not exceeded the
Accelerated Purchase Share Volume Maximum, or (B) the portion of the trading day
of the Accelerated Purchase Date (calculated starting at the beginning of normal trading hours)
until such time at which the volume of shares of Common Stock traded on the
Principal Market has exceeded the Accelerated Purchase Share Volume Maximum or
(ii) the Closing Sale Price on the Accelerated Purchase Date (to be
appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).
(f)
Accelerated Purchase Share Volume Maximum means the number of shares of
Common Stock traded on the Principal Market during normal trading hours on the
Accelerated Purchase Date equal to (i) the amount of shares of Common Stock
properly directed by the Company to be purchased on the Accelerated Purchase
Notice, divided by (ii) the Accelerated Purchase Share Percentage (to be
appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).
(g)
Available Amount means initially Ten Million Dollars ($10,000,000) in
the aggregate, which amount shall be reduced by the Purchase Amount each time
the Investor purchases shares of Common Stock pursuant to Section 2 hereof,
including, without limitation, the Initial Purchase pursuant to Section 2(a)
hereof.
(h)
Bankruptcy Law means Title 11, U.S. Code, or any similar federal
or state law for the relief of debtors.
(i)
Base Prospectus means the Companys final base prospectus, dated
February 4, 2014, a preliminary form of which is included in the Registration
Statement, including the documents incorporated by reference therein.
(j)
Business Day means any day on which the Principal Market is open for
trading, including any day on which the Principal Market is open for trading for
a period of time less than the customary time.
(k)
Closing Sale Price means, for any security as of any date, the
last closing sale price for such security on the Principal Market as reported by
the Principal Market.
(l)
Confidential Information means any information disclosed by
either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation,
documents, prototypes, samples, plant and equipment), which is designated as
"Confidential," "Proprietary" or some similar designation. Information
communicated orally shall be considered Confidential Information if such
information is confirmed in writing as being Confidential Information within ten
(10) Business Days after the initial disclosure. Confidential Information may
also include information disclosed to a disclosing party by third parties.
Confidential Information shall not, however, include any information which (i)
was publicly known and made generally available in the public domain prior to
the time of disclosure by the disclosing party; (ii) becomes publicly known and
made generally available after disclosure by the disclosing party to the
receiving party through no action or inaction of the receiving party; (iii) is
already in the possession of the receiving party at the time of disclosure by
the disclosing party as shown by the receiving partys files and records
immediately prior to the time of disclosure; (iv) is obtained by the receiving
party from a third party without a breach of such third partys obligations of
confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing partys Confidential Information, as shown
by documents and other competent evidence in the receiving partys possession;
or (vi) is required by law to be disclosed by the receiving party, provided that
the receiving party gives the disclosing party prompt written notice of such
requirement prior to such disclosure and assistance in
obtaining an order protecting the information from public disclosure.
-2-
(m)
Common Stock Equivalents means any securities of the Company or
its Subsidiaries which entitle the holder thereof to acquire at any time shares
of Common Stock, including, without limitation, any debt, preferred stock,
rights, options, warrants or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder
thereof to receive, shares of Common Stock.
(n)
Custodian means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
(o)
DTC means The Depository Trust Company, or any successor performing
substantially the same function for the Company.
(p)
DWAC Shares means shares of Common Stock that are (i) issued in
electronic form, (ii) freely tradable and transferable and without restriction
on resale and (iii) timely credited by the Company to the Investors or its
designees specified Deposit/Withdrawal at Custodian (DWAC) account with DTC
under its Fast Automated Securities Transfer (FAST) Program or any similar
program hereafter adopted by DTC performing substantially the same function.
(q)
Exchange Act means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
(r)
Floor Price means $0.25, which shall be appropriately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction and, effective upon the consummation of any such
reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction, the Floor Price shall mean the lower of (i) the
adjusted price and (ii) $0.25.
(s)
Initial Prospectus Supplement means the prospectus supplement to the
Base Prospectus complying with Rule 424(b) under the Securities Act that is
filed with the SEC and delivered by the Company to the Investor upon the
execution and delivery of this Agreement in accordance with Section 5(a),
including the documents incorporated by reference therein.
(t)
Material Adverse Effect means any material adverse effect on (i) the
enforceability of any Transaction Document, (ii) the results of operations,
assets, business or financial condition of the Company and its Subsidiaries,
taken as a whole, or (iii) the Companys ability to perform in any material
respect on a timely basis its obligations under any Transaction Document to be
performed as of the date of determination, other than any such change, effect,
event or circumstance that resulted exclusively from (A) any change in the
United States or foreign economies or securities or financial markets in general
that does not have a disproportionate effect on the Company and its
Subsidiaries, taken as a whole, (B) any change that generally affects the
industry in which the Company and its Subsidiaries operate that does not have a
disproportionate effect on the Company and its Subsidiaries, taken as a whole,
(C) any change arising in connection with earthquakes, hostilities, acts of war,
sabotage or terrorism or military actions or any escalation or material
worsening of any such hostilities, acts of war, sabotage or terrorism or
military actions existing as of the date hereof, (D) any action taken by the
Investor, its affiliates or its or their successors and assigns with respect to
the transactions contemplated by this Agreement, (E) the effect of any change in
applicable laws or accounting rules that does not have a disproportionate effect
on the Company and its Subsidiaries, taken as a whole, or (F) any
change resulting from compliance with terms of this Agreement or the
consummation of the transactions contemplated by this Agreement.
-3-
(u)
Maturity Date means the first day of the month immediately
following the thirty (30) month anniversary of the Commencement Date.
(v)
Person means an individual or entity, including, but not limited to,
any limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization and a government or any department or
agency thereof.
(w)
Principal Market means the NYSE MKT; provided however, that in the
event the Companys Common Stock is ever listed or traded on The NASDAQ Capital
Market, The NASDAQ Global Market, The NASDAQ Global Select Market, the New York
Stock Exchange or the NYSE Arca, then the Principal Market shall mean such
other market or exchange on which the Companys Common Stock is then listed or
traded.
(x)
Prospectus means the Base Prospectus, as supplemented by any
Prospectus Supplement (including the Initial Prospectus Supplement), including
the documents incorporated by reference therein.
(y)
Prospectus Supplement means any prospectus supplement to the Base
Prospectus (including the Initial Prospectus Supplement) filed with the SEC
pursuant to Rule 424(b) under the Securities Act in connection with the
transactions contemplated by this Agreement, including the documents
incorporated by reference therein.
(z)
Purchase Amount means, with respect to the Initial Purchase, any
Regular Purchase or any Accelerated Purchase made hereunder, the portion of the
Available Amount to be purchased by the Investor pursuant to Section 2 hereof.
(aa)
Purchase Date means, with respect to any Regular Purchase made
pursuant to Section 2(a) hereof, the Business Day on which the Investor receives
by 5:00 p.m., Eastern time, of such Business Day a valid Regular Purchase Notice
that the Investor is to buy Purchase Shares pursuant to Section 2(a) hereof.
(bb)
Purchase Price means, with respect to any Regular Purchase made
pursuant to Section 2(a) hereof, the lower of: (i) the lowest Sale Price of the
Common Stock on the applicable Purchase Date and (ii) the arithmetic average of
the three (3) lowest Closing Sale Prices for the Common Stock during the ten
(10) consecutive Business Days ending on the Business Day immediately preceding
such Purchase Date (in each case, to be appropriately adjusted for any
reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction).
(cc)
Registration Statement means the effective registration statement
on Form S-3 (Commission File No. 333-192611) filed by the Company with the SEC
pursuant to the Securities Act for the registration of shares of its Common
Stock, including the Securities, and certain other securities, as such
Registration Statement has been or may be amended and supplemented from time to
time, including all documents filed as part thereof or incorporated by reference
therein, and including all information deemed to be a part thereof at the time
of effectiveness pursuant to Rule 430B of the Securities Act, including any
comparable successor registration statement filed by the Company with the SEC
pursuant to the Securities Act for the registration of shares of its Common
Stock, including the Securities.
-4-
(dd)
Regular Purchase Notice means, with respect to any Regular Purchase
pursuant to Section 2(a) hereof, an irrevocable written notice from the Company
to the Investor directing the Investor to buy such applicable amount of Purchase
Shares at the applicable Purchase Price as specified by the Company therein on
the Purchase Date.
(ee)
Sale Price means any sale price for the shares of Common Stock on the
Principal Market as reported by the Principal Market.
(ff)
SEC means the U.S. Securities and Exchange Commission.
(gg)
Securities means, collectively, the Purchase Shares and the Commitment
Shares.
(hh)
Securities Act means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
(ii)
Subsidiary means any Person the Company wholly-owns or controls, or in
which the Company, directly or indirectly, owns a majority of the voting stock
or similar voting interest, in each case that would be disclosable pursuant to
Item 601(b)(21) of Regulation S-K promulgated under the Securities Act.
(jj)
Transaction Documents means, collectively, this Agreement and the
exhibits hereto, and each of the other agreements, documents, certificates and
instruments entered into or furnished by the parties hereto in connection with
the transactions contemplated hereby and thereby.
(kk)
Transfer Agent means Computershare Trust Company, N.A., or such other
Person who is then serving as the transfer agent for the Company in respect of
the Common Stock.
(ll)
VWAP means in respect of an applicable Accelerated Purchase Date, the
volume weighted average price of the Common Stock on the Principal Market, as
reported on the Principal Market.
2.
PURCHASE AND SALE OF COMMON STOCK.
Subject to the terms and conditions set forth in this
Agreement, the Company has the right, but not the obligation, to sell to the
Investor, in its sole and absolute discretion, and the Investor has the
obligation to purchase from the Company, Purchase Shares as follows:
(a)
Commencement of Sales of Common Stock. Upon the satisfaction of the
conditions set forth in Sections 7 and 8 hereof (the Commencement and
the date of satisfaction of such conditions the Commencement Date), the
Investor shall purchase $650,000 worth of Purchase Shares (such purchase the
Initial Purchase and such Purchase Shares the Initial Purchase
Shares) at a price equal to $0.59 per share. Beginning one (1) Business Day
following the Commencement Date, the Company shall have the right, but not the
obligation, to direct the Investor, by its delivery to the Investor of a Regular
Purchase Notice from time to time, to purchase up to Two Hundred Fifty Thousand
(250,000) Purchase Shares (each such purchase a Regular Purchase), at
the Purchase Price on the Purchase Date; provided, however, that (i) the Regular
Purchase may be increased to up to Three Hundred Thousand (300,000) Purchase
Shares, provided that the Closing Sale Price of the Common Stock is not below $0.75 on the Purchase Date, (ii) the Regular Purchase may
be increased to up to Three Hundred Fifty Thousand (350,000) Purchase Shares,
provided that the Closing Sale Price of the Common Stock is not below $1.00 on
the Purchase Date, (iii) the Regular Purchase may be increased to up to Four
Hundred Thousand (400,000) Purchase Shares, provided that the Closing Sale Price
of the Common Stock is not below $1.25 on the Purchase Date, and (iv) the
Regular Purchase may be increased to up to Four Hundred Fifty Thousand (450,000)
Purchase Shares, provided that the Closing Sale Price of the Common Stock is not
below $1.50 on the Purchase Date (all of which share amounts shall be
appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction); and provided, further, that
the Investors committed obligation under any single Regular Purchase shall not
exceed Seven Hundred Fifty Thousand Dollars ($750,000) (which amount shall be
appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction), unless the parties mutually
agree to increase the dollar amount of any Regular Purchase on any Purchase Date
at the applicable Purchase Price. If the Company delivers any Regular Purchase
Notice for a Purchase Amount in excess of the limitations contained in the
immediately preceding sentence, such Regular Purchase Notice shall be void ab
initio to the extent of the amount by which the number of Purchase Shares
set forth in such Regular Purchase Notice exceeds the number of Purchase Shares
which the Company is permitted to include in such Purchase Notice in accordance
herewith, and the Investor shall have no obligation to purchase such excess
Purchase Shares in respect of such Regular Purchase Notice; provided that the
Investor shall remain obligated to purchase the number of Purchase Shares which
the Company is permitted to include in such Regular Purchase Notice. The Company
may deliver a Regular Purchase Notice to the Investor as often as every Business
Day, so long as the most recent prior Regular Purchase (as applicable) has been
completed.
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(b)
Accelerated Purchases. Subject to the terms and conditions of this
Agreement, in addition to purchases of Purchase Shares as described in Section
2(a) above, the Company shall also have the right, but not the obligation, to
direct the Investor by the Companys delivery to the Investor of an Accelerated
Purchase Notice from time to time, and the Investor thereupon shall have the
obligation, to buy Purchase Shares at the Accelerated Purchase Price on the
Accelerated Purchase Date in an amount equal to the Accelerated Purchase Share
Amount (each such purchase, an Accelerated Purchase). The Company may
deliver an Accelerated Purchase Notice to the Investor only on a Purchase Date
on which the Closing Sale Price is not below $0.50 (to be appropriately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction and, effective upon the consummation of any such
reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction, the Closing Sale Price is not below the lower of (i) the
adjusted price and (ii) $0.50) . If the Company delivers any Accelerated
Purchase Notice for an Accelerated Purchase Share Amount in excess of the
limitations contained in the definition of Accelerated Purchase Share Amount,
such Accelerated Purchase Notice shall be void ab initio to the extent of
the amount by which the number of Purchase Shares set forth in such Accelerated
Purchase Notice exceeds the Accelerated Purchase Share Amount which the Company
is permitted to include in such Accelerated Purchase Notice in accordance
herewith (which shall be confirmed in an Accelerated Purchase Confirmation
(defined below)), and the Investor shall have no obligation to purchase such
excess Purchase Shares in respect of such Accelerated Purchase Notice; provided
that the Investor shall remain obligated to purchase the Accelerated Purchase
Share Amount which the Company is permitted to include in such Accelerated
Purchase Notice. Within one (1) Business Day after completion of each
Accelerated Purchase Date, the Accelerated Purchase Share Amount and the
applicable Accelerated Purchase Price shall be set forth on a confirmation of
the Accelerated Purchase to be provided to the Company by the Investor (an
Accelerated Purchase Confirmation).
-6-
(c)
Payment for Purchase Shares. For each Regular Purchase, the
Investor shall pay to the Company an amount equal to the Purchase Amount with
respect to such Regular Purchase as full payment for such Purchase Shares via
wire transfer of immediately available funds on the same Business Day that the
Investor receives such Purchase Shares, if such Purchase Shares are received by
the Investor before 1:00 p.m., Eastern time, or, if such Purchase Shares are
received by the Investor after 1:00 p.m., Eastern time, the next Business Day.
For each Accelerated Purchase, the Investor shall pay to the Company an amount
equal to the Purchase Amount with respect to such Accelerated Purchase as full
payment for such Purchase Shares via wire transfer of immediately available
funds on the third Business Day following the date that the Investor receives
such Purchase Shares. If the Company or the Transfer Agent shall fail for any
reason or for no reason to electronically transfer any Purchase Shares as DWAC
Shares in respect of a Regular Purchase or Accelerated Purchase (as applicable)
within three (3) Business Days following the receipt by the Company of the
Purchase Price or Accelerated Purchase Price, respectively, therefor in
compliance with this Section 2(c), and if on or after such Business Day the
Investor purchases (in an open market transaction or otherwise) shares of Common
Stock to deliver in satisfaction of a sale by the Investor of such Purchase
Shares that the Investor anticipated receiving from the Company in respect of
such Regular Purchase or Accelerated Purchase (as applicable), then the Company
shall, within three (3) Business Days after the Investors request, either (i)
pay cash to the Investor in an amount equal to the Investors total purchase
price (including brokerage commissions, if any) for the shares of Common Stock
so purchased (the Cover Price), at which point the Companys obligation
to deliver such Purchase Shares as DWAC Shares shall terminate, or (ii) promptly
honor its obligation to deliver to the Investor such Purchase Shares as DWAC
Shares and pay cash to the Investor in an amount equal to the excess (if any) of
the Cover Price over the total Purchase Price for such Regular Purchase plus the
total Accelerated Purchase Price for such Accelerated Purchase (as applicable).
The Company shall not issue any fraction of a share of Common Stock upon any
Regular Purchase or Accelerated Purchase. If the issuance would result in the
issuance of a fraction of a share of Common Stock, the Company shall round such
fraction of a share of Common Stock up or down to the nearest whole share. All
payments made under this Agreement shall be made in lawful money of the United
States of America or wire transfer of immediately available funds to such
account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any amount expressed
to be due by the terms of this Agreement is due on any day that is not a
Business Day, the same shall instead be due on the next succeeding day that is a
Business Day.
(d)
Purchase Price Floor. The Company and the Investor shall not effect
any Regular Purchase under this Agreement on any Purchase Date that the Closing
Sale Price is less than the Floor Price.
(e)
Compliance with Registration Statement Eligibility Requirements and Rules
of Principal Market.
(i)
Maximum Share Cap. The Company shall not issue or sell any shares of
Common Stock pursuant to this Agreement, and the Investor shall not purchase or
acquire any shares of Common Stock pursuant to this Agreement, to the extent
that after giving effect thereto, the aggregate number of shares of Common Stock
that would be issued pursuant to this Agreement and the transactions
contemplated hereby would exceed the lesser of: (A) subject to Section
2(e)(ii) below, 21,509,525 shares of Common Stock (which number of shares shall
be reduced, on a share-for-share basis, by the number of shares of Common Stock
issued or issuable pursuant to any transaction or series of transactions that
may be aggregated with the transactions contemplated by this Agreement under
applicable rules of the NYSE MKT or any other Principal Market on which the
Common Stock may be listed or quoted) (the Exchange Cap), unless and
until the Company elects to solicit stockholder approval of the transactions
contemplated by this Agreement and the stockholders of the
Company have in fact approved the transactions contemplated by this Agreement in
accordance with the applicable rules and regulations of the NYSE MKT, any other
Principal Market on which the Common Stock may be listed or quoted, and the
Certificate of Incorporation and Bylaws of the Company; and (B) for so long as
the Company is subject to the limitations set forth in General Instruction
I.B.6. of Form S-3, the maximum number of shares of Common Stock that the
Company may issue pursuant to this Agreement and the transactions contemplated
hereby without exceeding the limitations set forth in General Instruction I.B.6.
of Form S-3 (the Registration Statement Eligibility Cap). For all
purposes of this Agreement, the term Maximum Share Cap shall mean the lesser of (i) the Exchange Cap, to the extent applicable to the
transactions contemplated by this Agreement, and (ii) the Registration Statement
Eligibility Cap, to the extent applicable to the transactions contemplated by
this Agreement. For the avoidance of doubt, the Company may, but shall be under
no obligation to, request its stockholders to approve the transactions
contemplated by this Agreement; provided, that if stockholder approval is not
obtained in accordance with this Section 2(e)(i), the Exchange Cap shall be
applicable for all purposes of this Agreement and the transactions contemplated
hereby at all times during the term of this Agreement (except as set forth in
Section 2(e)(ii) below).
-7-
(ii)
At-Market Transaction. Notwithstanding Section 2(e)(i) above and subject
to the prior approval of the NYSE MKT or any other Principal Market on which the
Common Stock may be listed or quoted (to the extent required), the Exchange Cap
shall not be applicable for any purposes of this Agreement and the transactions
contemplated hereby, solely to the extent that the issuances and sales of Common
Stock pursuant to this Agreement are deemed to be at a price equal to or in
excess of the greater of book or market value of the Common Stock as calculated
in accordance with the applicable rules of the NYSE MKT or any other Principal
Market on which the Common Stock may be listed or quoted (it being hereby
acknowledged and agreed that the Exchange Cap shall be applicable for all
purposes of this Agreement and the transactions contemplated hereby at all other
times during the term of this Agreement, unless the stockholder approval
referred to in Section 2(e)(i) is obtained).
(iii)
General. The Company shall not issue any shares of Common Stock pursuant
to this Agreement and the transactions contemplated hereby if such issuance
would reasonably be expected to result in (A) a violation of the Securities Act
or non-compliance with General Instruction I.B.6. of Form S-3 or (B) a breach of
the rules and regulations of the NYSE MKT or any other Principal Market on which
the Common Stock may be listed or quoted. The provisions of this Section
2(e) shall be implemented in a manner otherwise than in strict conformity
with the terms hereof only if necessary to ensure compliance with the Securities
Act, General Instruction I.B.6. of Form S-3, and the rules and regulations of
the NYSE MKT or any other Principal Market on which the Common Stock may be
listed or quoted.
(f)
Beneficial Ownership Limitation. Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not issue or sell and the
Investor shall not purchase or acquire any shares of Common Stock under this
Agreement which, when aggregated with all other shares of Common Stock then
beneficially owned by the Investor and its affiliates (as calculated pursuant to
Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would
result in the beneficial ownership by the Investor and its affiliates of more
than 9.99% of the then issued and outstanding shares of Common Stock (the
Beneficial Ownership Limitation). Upon the written or oral request of
the Investor, the Company shall promptly (but not later than one (1) Business
Day) confirm orally or in writing to the Investor the number of shares of Common
Stock then outstanding. The Investor and the Company shall each cooperate in
good faith in the determinations required hereby and the application hereof. The
Investors written certification to the Company of the applicability of the Beneficial Ownership Limitation, and the resulting effect
thereof hereunder at any time, shall be conclusive with respect to the
applicability thereof and such result absent manifest error.
-8-
3.
INVESTOR'S REPRESENTATIONS AND WARRANTIES.
The Investor represents and warrants to the Company that as of
the date hereof and as of the Commencement Date:
(a)
Accredited Investor Status. The Investor is an accredited investor as
that term is defined in Rule 501(a)(3) of Regulation D promulgated under the
Securities Act.
(b)
Information. The Investor (i) is able to bear the economic risk of
an investment in the Securities including a total loss thereof, (ii) has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the proposed investment in the Securities and
(iii) has had an opportunity to ask questions of and receive answers from the
officers of the Company concerning the financial condition and business of the
Company and others matters related to an investment in the Securities. Neither
such inquiries nor any other due diligence investigations conducted by the
Investor or its representatives shall modify, amend or affect the Investor's
right to rely on the Company's representations and warranties contained in
Section 4 below. The Investor has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision with
respect to its acquisition of the Securities.
(c) No
Governmental Review. The Investor understands that no U.S. federal or state
agency or any other government or governmental agency has passed on or made any
recommendation or endorsement of the Securities or the fairness or suitability
of an investment in the Securities nor have such authorities passed upon or
endorsed the merits of the offering of the Securities.
(d)
Validity; Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Investor and is a valid and
binding agreement of the Investor enforceable against the Investor in accordance
with its terms, subject as to enforceability to general principles of equity and
to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of
applicable creditors' rights and remedies.
(e)
Residency. The Investor is a resident of the State of Illinois.
(f) No
Prior Short Selling. The Investor represents and warrants to the Company
that at no time prior to the date of this Agreement has any of the Investor, its
agents, representatives or affiliates engaged in or effected, in any manner
whatsoever, directly or indirectly, any (i) short sale (as such term is
defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock
or (ii) hedging transaction, which establishes a net short position with respect
to the Common Stock.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the SEC Documents (as defined below),
the Company represents and warrants to the Investor that as of the date hereof
and as of the Commencement Date:
(a)
Organization and Qualification. The Company and each of the
Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, with the requisite power and authority to own and
use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation or default of
any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the
Company and the Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in
which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good
standing, as the case may be, would not have or reasonably be expected to result
in a Material Adverse Effect, and no proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification, except where the revocation,
limitation or curtailment would not reasonably be expected to result in a
Material Adverse Effect. The Company has no Subsidiaries except as set forth in
the SEC Documents.
-9-
(b)
Authorization; Enforcement; Validity. (i) The Company has the requisite
corporate power and authority to enter into and perform its obligations under
this Agreement and each of the other Transaction Documents to which it is a
party, and to issue the Securities in accordance with the terms hereof and
thereof, (ii) the execution and delivery of the Transaction Documents by the
Company to which it is a party and the consummation by it of the transactions
contemplated hereby and thereby, including without limitation, the issuance of
the Commitment Shares and the reservation for issuance and the issuance of the
Purchase Shares, issuable pursuant to this Agreement, have been duly authorized
by the Company's Board of Directors (the Board of Directors) and the
Pricing Committee of the Board of Directors (the Pricing Committee) and
no further consent or authorization is required by the Company, the Board of
Directors, the Pricing Committee or the Companys stockholders, (iii) this
Agreement has been, and each other Transaction Document shall be on the
Commencement Date, duly executed and delivered by the Company and (iv) this
Agreement constitutes, and each other Transaction Document upon its execution by
the Company, shall constitute, the valid and binding obligations of the Company
enforceable against the Company in accordance with its terms, except (A) as
limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors rights generally, (B) as limited by laws relating to
the availability of specific performance, injunctive relief or other equitable
remedies and (C) insofar as indemnification and contribution provisions may be
limited by applicable law. The Board of Directors and the Pricing Committee have
approved the respective resolutions (the Signing Resolutions)
substantially in the form as set forth as Exhibit B attached
hereto to authorize this Agreement and the transactions contemplated hereby. The
Signing Resolutions are valid, in full force and effect and have not been
modified or supplemented in any respect. The Company has delivered to the
Investor a true and correct copy of a unanimous written consent adopting the
Signing Resolutions executed by all of the members of the Board of Directors and
the Pricing Committee, as applicable. No other approvals or consents of the
Board of Directors, the Pricing Committee or the Companys stockholders is
necessary under applicable laws and the Companys Certificate of Incorporation
or Bylaws to authorize the execution and delivery of this Agreement or any of
the transactions contemplated hereby, including, but not limited to, the
issuance of the Commitment Shares and the issuance of the Purchase Shares.
(c)
Capitalization. The capitalization of the Company is as described
in the Companys most recently filed Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as applicable, (i) no shares of the Company's capital stock
are subject to preemptive rights or any other similar rights or any liens or
encumbrances suffered or permitted by the Company, (ii) except as described in
the Form 8-K filed on December 18, 2015, there are no outstanding debt
securities of the Company, (iii) except as described in the Companys most
recent Form 10-K or 10-Q, there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the
Company or any of its Subsidiaries is or may become bound to issue additional
shares of capital stock of the Company or any of its Subsidiaries or options,
warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares of
capital stock of the Company or any of its Subsidiaries, (iv) there are no
agreements or arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their respective securities under the
Securities Act which have not been so registered, except for shares issuable
under the promissory note to Goldman Sachs & Co., (v) there are no
outstanding securities or instruments of the Company or any of its Subsidiaries
which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to redeem a security of the Company or any
of its Subsidiaries, (vi) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of
the Securities as described in this Agreement and (vii) the Company does not
have any stock appreciation rights or "phantom stock" plans or agreements or any
similar plan or agreement. The Company has furnished or made available to the
Investor true and correct copies of the Company's Certificate of Incorporation,
as amended and as in effect on the date hereof (the Certificate of
Incorporation), and the Company's Bylaws, as amended and as in effect on
the date hereof (the "Bylaws"), and summaries of the terms of all
securities convertible into or exercisable for Common Stock, if any, and copies
of any documents containing the material rights of the holders thereof in
respect thereto.
-10-
(d)
Issuance of Securities. Upon issuance and payment therefor in accordance
with the terms and conditions of this Agreement, the Purchase Shares shall be
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, with the holders being entitled to
all rights accorded to a holder of Common Stock. 21,147,410 shares of Common
Stock have been duly authorized and reserved for issuance under this Agreement
as Purchase Shares. Upon issuance in accordance with the terms and conditions of
this Agreement, the Commitment Shares, shall be duly authorized, validly issued,
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof, with the holders being entitled to all rights
accorded to a holder of Common Stock. The Securities are being issued pursuant
to the Registration Statement and the issuance of the Securities has been
registered by the Company pursuant to the Securities Act. Upon receipt of the
Purchase Shares and the Commitment Shares, the Investor will have good and
marketable title to such Securities and such Securities will be immediately
freely tradable on the Principal Market.
(e) No
Conflicts; Compliance. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the Company of the
transactions contemplated hereby and thereby (including, without limitation, the
issuance of the Commitment Shares and the reservation for issuance and issuance
of the Purchase Shares) will not (i) result in a violation of the Certificate of
Incorporation or the Bylaws or (ii) conflict with, or constitute a default (or
an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its Subsidiaries is a party, or (iii) be subject to the Required
Approvals (as defined below), result in a violation of any law, rule,
regulation, order, judgment or decree (including U.S. federal and state and
foreign securities laws and regulations and the rules and regulations of the
Principal Market applicable to the Company or any of its Subsidiaries) or by
which any property or asset of the Company or any of its Subsidiaries is bound
or affected, except in the case of clauses (ii) and (iii) above, for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and
violations which would not reasonably be expected to result in a Material
Adverse Effect. Except as disclosed in the SEC Documents, neither the Company
nor any of its Subsidiaries is in violation of its Certificate of Incorporation
or Bylaws (or other similar organizational documents), or is in violation of any
term of, or is in default under, any contract, agreement, mortgage, indebtedness,
indenture, instrument, judgment, decree or order or any statute, rule or
regulation applicable to the Company or its Subsidiaries, except for such
conflicts, defaults, terminations or amendments which could not reasonably be
expected to have a Material Adverse Effect. The business of the Company and its
Subsidiaries is not being conducted, and shall not be conducted, in knowing
violation of any law, ordinance or regulation of any governmental entity, except
for such violations the sanctions for which would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
-11-
(f)
Filings and Authorizations. Except as disclosed in the SEC Documents and
except where the failure to obtain any such consent, authorization or order or
make any such filing or registration would not reasonably be expected to result
in a Material Adverse Effect, the Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any federal,
state, local or foreign court or governmental agency or any federal, state,
local or foreign regulatory or self-regulatory agency in order for it to
execute, deliver or perform any of its obligations under or contemplated by the
Transaction Documents in accordance with the terms hereof or thereof, other than
(i) as specifically contemplated by this Agreement, (ii) as required under the
Securities Act and applicable state securities or Blue Sky laws, and (iii) as
required under the rules and regulations of the Principal Market in connection
with the transactions contemplated hereby (collectively, the Required
Approvals), each of which has been, or (if not required to have been
obtained or made on or prior to the date of this Agreement), shall be, timely
obtained or made prior to the Commencement Date. Since one year prior to the
date hereof, the Company has not received nor delivered any notices or
correspondence from or to the Principal Market relating to any violation of the
listing requirements of the Principal Market. The Principal Market has not
commenced any delisting proceedings against the Company.
(g)
SEC Documents; Financial Statements; Reporting Obligations In Canada. The
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years
preceding the date hereof (or such shorter period as the Company was required by
law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the SEC Documents) on a timely basis
or has received a valid extension of such time of filing and has filed any such
SEC Documents prior to the expiration of any such extension. As of their
respective dates, the SEC Documents complied in all material respects with the
requirements of the Securities Act and the Exchange Act, as applicable, and none
of the SEC Documents, when filed, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply in all material
respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (GAAP), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited
financial statements may not contain all footnotes required by GAAP, and fairly
present in all material respects the financial position of the Company and its
consolidated Subsidiaries as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments. The
Company has made available to the Investor true and complete copies of all
comment letters and substantive correspondence received by the Company from the
SEC during the 12 months immediately preceding the date hereof, together with
all written responses of the Company thereto in the form such responses were
filed with the SEC. There are no outstanding or unresolved comments in such comment letters received by the Company from the SEC. The SEC
has not commenced any enforcement proceedings against the Company or any of its
Subsidiaries. The Company is a reporting issuer or an equivalent thereof in each
of the Provinces of British Columbia, Alberta and Ontario and is not noted as
being in default on any list of reporting issuers or reporting issuers in
default maintained by the securities commission in each such Province.
-12-
(h) Absence
of Certain Changes. Except as disclosed in the SEC Documents and except as
contemplated by this Agreement, since the date of the latest audited financial
statements included within the SEC Documents, there has been no material adverse
change in the business, properties, operations, financial condition or results
of operations of the Company or its Subsidiaries. The Company has not taken any
steps, and does not currently expect to take any steps, to seek protection
pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries
have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is
financially solvent and is generally able to pay its debts as they become
due.
(i)
Absence of Litigation. Except as disclosed in the SEC Documents,
there is no action, suit, proceeding, inquiry or investigation before or by any
court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any Subsidiary or any of the Companys or its Subsidiaries officers
or directors in their capacities as such, which would, if there were an
unfavorable decision, reasonably be expected to result in a Material Adverse
Effect.
(j)
Acknowledgment Regarding Investor's Status. The Company
acknowledges and agrees that the Investor is acting solely in the capacity of
arm's length purchaser with respect to the Transaction Documents and the
transactions contemplated hereby and thereby. The Company further acknowledges
that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated hereby and thereby and any advice given by the
Investor or any of its representatives or agents in connection with the
Transaction Documents and the transactions contemplated hereby and thereby is
merely incidental to the Investor's purchase of the Securities. The Company
further represents to the Investor that the Company's decision to enter into the
Transaction Documents has been based solely on the independent evaluation by the
Company and its representatives and advisors.
(k) No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any
Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security,
under circumstances that would cause this offering of the Securities to be
integrated with prior offerings by the Company in a manner that would require
stockholder approval pursuant to the rules of the Principal Market on which any
of the securities of the Company are listed or designated. The issuance and sale
of the Securities hereunder does not contravene the rules and regulations of the
Principal Market.
(l)
Intellectual Property Rights. The Company and each Subsidiary have, or
have rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, copyrights, licenses and other similar
intellectual property rights currently employed by them in connection with the
business currently operated by them that are necessary for use in the conduct of
their respective businesses as described in the SEC Documents and which the
failure to so have would not reasonably be expected to have a Material Adverse
Effect (collectively, the Intellectual Property Rights). To the
knowledge of the Company, all such Intellectual Property Rights are enforceable
and there is no existing infringement by another Person of any of the
Intellectual Property Rights of the Company or any Subsidiary. Except as set forth in the SEC
Documents, there are no actions, suits or judicial proceedings pending, or to
the Companys knowledge threatened, relating to patents or proprietary
information to which the Company or any of its Subsidiaries is a party or of
which any property of the Company or any of its Subsidiaries is subject, and
neither the Company nor any of its Subsidiaries has received any written notice
or is otherwise aware of any infringement of or conflict with asserted rights of
any other Person with respect to any Intellectual Property Rights or of any
facts or circumstances which could render any Intellectual Property Rights
invalid or inadequate to protect the interest of the Company and its
Subsidiaries therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
-13-
(m)
Environmental Laws. The Company and its Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (Environmental Laws), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (iii) are in compliance with all
terms and conditions of any such permit, license or approval, except in the case
of clauses (i), (ii) and (iii) above, where the failure to so comply or to
obtain such permits, licenses or approvals would not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
(n)
Title. The Company and the Subsidiaries have good and marketable title in
fee simple to all real property owned by them and good and marketable title in
all personal property owned by them that is material to the business of the
Company and the Subsidiaries, in each case free and clear of all liens,
encumbrances and defects (collectively, Liens), except for Liens that
do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the
Company and its Subsidiaries, and Liens for the payment of federal, state or
other taxes, the payment of which is neither delinquent nor subject to
penalties, and Liens relating to project financing which has been disclosed in
the SEC Documents. Any real property and facilities held under lease by the
Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with which the Company and the Subsidiaries are in compliance
(with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
Subsidiaries).
(o)
Insurance. The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and
customary in the businesses in which the Company and its Subsidiaries are
engaged. Neither the Company nor any of its Subsidiaries has been refused any
insurance coverage sought or applied for and neither the Company nor any such
Subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business without a significant increase in cost.
(p)
Regulatory Permits. The Company and its Subsidiaries possess all material
certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective
businesses (collectively, Material Permits), and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the
revocation or modification of any Material Permit.
-14-
(q)
Tax Status. The Company and each of its Subsidiaries has made or
filed (or requested valid extensions of) all federal, state and foreign income
and all other material tax returns, reports and declarations required by any
jurisdiction to which it is subject (unless and only to the extent that the
Company and each of its Subsidiaries has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has
paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith. There are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for any such
claim.
(r)
Transactions With Affiliates. Except as set forth in the SEC
Documents, none of the officers or directors of the Company and, to the
knowledge of the Company, none of the employees of the Company is presently a
party to any transaction with the Company or any Subsidiary (other than for
services as employees, officers and directors) that is required to be disclosed
and is not disclosed, including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner, in each case in excess
of $120,000, other than for (i) payment of salary or consulting fees for
services rendered, (ii) reimbursement for expenses incurred on behalf of the
Company and (iii) other employee benefits, including stock option agreements
under any equity incentive plan of the Company.
(s)
Application of Takeover Protections. The Company and its board of
directors have taken or will take prior to the Commencement Date all necessary
action, if any, in order to render inapplicable any control share acquisition,
business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Certificate of
Incorporation or the laws of the state of its incorporation which is or could
become applicable to the Investor as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company's issuance of the
Securities and the Investor's ownership of the Securities.
(t)
Disclosure. Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents that
will be, and to the extent that they actually are, timely publicly disclosed by
the Company, the Company confirms that neither it nor any other Person acting on
its behalf has provided the Investor or its agents or counsel with any
information that it believes constitutes or might constitute material,
non-public information which is not otherwise disclosed in the Registration
Statement or the SEC Documents. The Company understands and confirms that the
Investor will rely on the foregoing representation in effecting acquisitions and
sales of securities of the Company. All of the disclosure furnished by or on
behalf of the Company to the Investor regarding the Company, its business and
the transactions contemplated hereby, including the SEC Documents and disclosure
schedules to this Agreement, is true and correct in all material respects and
does not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading. The press
releases disseminated by the Company during the twelve months preceding the date
of this Agreement and the SEC Documents taken as a whole do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that the Investor neither makes nor has made
any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3 hereof.
-15-
(u)
Foreign Corrupt Practices. Neither the Company, nor to the
knowledge of the Company, any agent or other Person acting on behalf of the
Company, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to
foreign or domestic government officials or employees or to any foreign or
domestic political parties or campaigns from corporate funds, (iii) failed to
disclose fully any contribution made by the Company (or made by any Person
acting on its behalf of which the Company is aware) which is in violation of
law, or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
(v)
Registration Statement. The Company has prepared and filed with the SEC
in accordance with the provisions of the Securities Act the Registration
Statement. The Registration Statement was declared effective by order of the SEC
on February 4, 2014. The Registration Statement is effective pursuant to the
Securities Act and available for the issuance of the Securities thereunder, and
the Company has not received any written notice that the SEC has issued or
intends to issue a stop order or other similar order with respect to the
Registration Statement or the Prospectus or that the SEC otherwise has (i)
suspended or withdrawn the effectiveness of the Registration Statement or (ii)
issued any order preventing or suspending the use of the Prospectus or any
Prospectus Supplement, in either case, either temporarily or permanently or
intends or has threatened in writing to do so. The Plan of Distribution
section of the Prospectus permits the issuance of the Securities hereunder. At
the time the Registration Statement and any amendments thereto became effective,
at the date of this Agreement and at each deemed effective date thereof pursuant
to Rule 430B(f)(2) of the Securities Act, the Registration Statement and any
amendments thereto complied and will comply in all material respects with the
requirements of the Securities Act and did not and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading; and
the Base Prospectus and any Prospectus Supplement thereto, at the time such Base
Prospectus or such Prospectus Supplement thereto was issued and on the
Commencement Date, complied and will comply in all material respects with the
requirements of the Securities Act and did not and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that this representation and warranty does
not apply to statements in or omissions from any Prospectus Supplement made in
reliance upon and in conformity with information relating to the Investor
furnished to the Company in writing by or on behalf of the Investor expressly
for use therein. The Company meets all of the requirements for the use of a
registration statement on Form S-3 pursuant to the Securities Act for the
offering and sale of the Securities contemplated by this Agreement, including,
to the extent applicable to the transactions contemplated by this Agreement,
those set forth in General Instruction I.B.6. of Form S-3, and the SEC has not
notified the Company of any objection to the use of the form of the Registration
Statement pursuant to Rule 401(g)(1) of the Securities Act. The Company hereby
confirms that, for so long as the Company is subject to General Instruction
I.B.6. of Form S-3, the Company shall not issue any shares of Common Stock
pursuant to this Agreement if such issuance would reasonably be expected to
result in non-compliance with General Instruction I.B.6. of Form S-3. The
Registration Statement, as of its effective date, meets the requirements set
forth in Rule 415(a)(1)(x) pursuant to the Securities Act. At the earliest time
after the filing of the Registration Statement that the Company or another
offering participant made a bona fide offer (within the meaning of Rule
164(h)(2) of the Securities Act) relating to any of the Securities, the Company
was not and is not an Ineligible Issuer (as defined in Rule 405 of the
Securities Act). The Company has not distributed any offering material in
connection with the offering and sale of any of the Securities, and, until the
Investor does not hold any of the Securities, shall not distribute any offering
material in connection with the offering and sale of any of the Securities, to
or by the Investor, in each case, other than the Registration Statement or any
amendment thereto, the Prospectus or any Prospectus Supplement required
pursuant to applicable law or the Transaction Documents. The Company has not
made, and agrees that unless it obtains the prior written consent of the
Investor it will not make, an offer relating to the Securities that would
constitute a free writing prospectus as defined in Rule 405 under the
Securities Act. The Company shall comply with the requirements of Rules 164 and
433 under the Securities Act applicable to any such free writing prospectus
consented to by the Investor, including in respect of timely filing with the
SEC, legending and record keeping.
-16-
(w)
DTC Eligibility. The Company, through the Transfer Agent, currently
participates in the DTC Fast Automated Securities Transfer (FAST) Program and
the Common Stock can be transferred electronically to third parties via the DTC
Fast Automated Securities Transfer (FAST) Program.
(x)
Sarbanes-Oxley. The Company is in material compliance with all provisions
of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as of
the date hereof.
(y)
Certain Fees. Except as disclosed on Schedule 4(y), no
brokerage or finders fees or commissions are or will be payable by the Company
to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents. Except as disclosed on Schedule
4(y), the Investor shall have no obligation with respect to any fees or with
respect to any claims made by or on behalf of other Persons for fees of a type
contemplated in this Section 4(y) that may be due in connection with the
transactions contemplated by the Transaction Documents.
(z)
Investment Company. The Company is not, and immediately after receipt of
payment for the Securities will not be, an investment company within the
meaning of the Investment Company Act of 1940, as amended.
(aa)
Listing and Maintenance Requirements. The Common Stock is
registered pursuant to Section 12(b) of the Exchange Act, and the Company has
taken no action designed to, or which to its knowledge is likely to have the
effect of, terminating the registration of the Common Stock pursuant to the
Exchange Act nor has the Company received any notification that the SEC is
currently contemplating terminating such registration. The Common Stock is
currently listed on the Principal Market under the trading symbol HTM. The
Company has not, in the 12 months preceding the date hereof, received any notice
from any Person to the effect that the Company is not in compliance with the
listing or maintenance requirements of the Principal Market. The Company is, and
has no reason to believe that it will not in the foreseeable future continue to
be, in compliance with all such listing and maintenance requirements.
(bb)
Accountants. The Companys accountants are set forth in the SEC Documents
and, to the knowledge of the Company, such accountants are an independent
registered public accounting firm as required by the Securities Act.
(cc)
Regulation M Compliance. The Company has not, and to its knowledge no
Person acting on its behalf has, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay
to any Person any compensation for soliciting another to purchase any other
securities of the Company.
-17-
(dd) Shell Company Status. The Company is not, and has
never been, an issuer identified in Rule 144(i)(1) under the Securities Act.
5.
COVENANTS.
(a)
Filing of Current Report and Initial Prospectus Supplement. The
Company agrees that it shall, within the time required under the Exchange Act,
file with the SEC a report on Form 8-K relating to the transactions contemplated
by, and describing the material terms and conditions of, the Transaction
Documents (the Current Report). The Company further agrees that it
shall, within the time required under Rule 424(b) under the Securities Act, file
with the SEC the Initial Prospectus Supplement pursuant to Rule 424(b) under the
Securities Act specifically relating to the transactions contemplated by, and
describing the material terms and conditions of, the Transaction Documents,
containing information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430B under the Securities Act, and
disclosing all information relating to the transactions contemplated hereby
required to be disclosed in the Registration Statement and the Prospectus as of
the date of the Initial Prospectus Supplement, including, without limitation,
information required to be disclosed in the section captioned Plan of
Distribution in the Prospectus. The Investor acknowledges that it will be
identified in the Initial Prospectus Supplement as an underwriter within the
meaning of Section 2(a)(11) of the Securities Act. The Company shall permit the
Investor to review and comment upon the Current Report and the Initial
Prospectus Supplement at least two (2) Business Days prior to their filing with
the SEC, the Company shall give due consideration to all such comments, and the
Company shall not file the Current Report or the Initial Prospectus Supplement
with the SEC in a form to which the Investor reasonably objects. The Investor
shall use its reasonable best efforts to comment upon the Current Report and the
Initial Prospectus Supplement within one (1) Business Day from the date the
Investor receives the final pre-filing draft version thereof from the Company.
The Investor shall furnish to the Company such information regarding itself, the
Securities held by it and the intended method of distribution thereof, including
any arrangement between the Investor and any other Person relating to the sale
or distribution of the Securities, as shall be reasonably requested by the
Company in connection with the preparation and filing of the Current Report and
the Initial Prospectus Supplement, and shall otherwise cooperate with the
Company as reasonably requested by the Company in connection with the
preparation and filing of the Current Report and the Initial Prospectus
Supplement with the SEC.
(b)
Blue Sky. The Company shall take all such action, if any, as is
reasonably necessary in order to obtain an exemption for or to qualify (i) the
issuance of the Commitment Shares and the sale of the Purchase Shares to the
Investor under this Agreement and (ii) any subsequent resale of the Commitment
Shares and any Purchase Shares by the Investor, in each case, under applicable
securities or Blue Sky laws of the states of the United States in such states
as is reasonably requested by the Investor from time to time, and shall provide
evidence of any such action so taken to the Investor.
(c)
Listing/DTC. The Company shall promptly secure the listing of all
of the Purchase Shares and Commitment Shares to be issued to the Investor
hereunder on the Principal Market (subject to official notice of issuance) and
upon each other national securities exchange or automated quotation system, if
any, upon which the Common Stock is then listed, and shall maintain, so long as
any shares of Common Stock shall be so listed, such listing of all such
Securities from time to time issuable hereunder. The Company shall use
commercially reasonable efforts to maintain the listing of the Common Stock on
the Principal Market and shall comply in all respects with the Companys
reporting, filing and other obligations under the bylaws or rules and
regulations of the Principal Market. Neither the Company nor any of its
Subsidiaries shall take any action that would reasonably be expected to result
in the delisting or suspension of the Common Stock on the Principal Market. The
Company shall promptly, and in no event later than the following Business Day, provide to the Investor
copies of any notices it receives from any Person regarding the continued
eligibility of the Common Stock for listing on the Principal Market. The Company
shall pay all fees and expenses in connection with satisfying its obligations
under this Section. The Company shall take all action necessary to ensure that
its Common Stock can be transferred electronically as DWAC Shares.
-18-
(d)
Prohibition of Short Sales and Hedging Transactions. The Investor agrees
that, beginning on the date of this Agreement and ending on the date of
termination of this Agreement as provided in Section 11, the Investor and its
agents, representatives and affiliates shall not in any manner whatsoever enter
into or effect, directly or indirectly, any (i) short sale (as such term is
defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock
or (ii) hedging transaction, which establishes a net short position with respect
to the Common Stock.
(e)
Issuance of Commitment Shares. In consideration for the Investors
execution and delivery of this Agreement, the Company shall cause the Transfer
Agent to issue, on the date of this Agreement, 362,115 shares of Common Stock
(the Commitment Shares) directly to the Investor electronically as DWAC
Shares and shall deliver to the Transfer Agent the Irrevocable Transfer Agent
Instructions (as defined below) with respect to the issuance of the Commitment
Shares. For the avoidance of doubt, all of the Commitment Shares shall be fully
earned as of the date of this Agreement, whether or not the Commencement shall
occur or any Purchase Shares are purchased by the Investor under this Agreement
and irrespective of any termination of this Agreement.
(f)
Due Diligence; Non-Public Information. During the term of this Agreement,
the Investor shall have the right, from time to time, to perform reasonable due
diligence on the Company during the Companys normal business hours. The Company
and its officers and employees shall provide information and reasonably
cooperate with the Investor in connection with any reasonable request by the
Investor related to the Investor's due diligence of the Company. Each party
hereto agrees not to disclose any Confidential Information of the other party to
any third party and shall not use the Confidential Information for any purpose
other than in connection with, or in furtherance of, the transactions
contemplated hereby. Each party hereto acknowledges that the Confidential
Information shall remain the property of the disclosing party and agrees that it
shall take all reasonable measures to protect the secrecy of any Confidential
Information disclosed by the other party. From and after the date of this
Agreement, the Company covenants and agrees that neither it nor any other Person
acting on its behalf will provide the Investor or its agents or counsel with any
information that the Company believes constitutes material non-public
information, unless a simultaneous public announcement thereof is made by the
Company in the manner contemplated by Regulation FD under the Exchange Act. In
the event of a breach of the foregoing covenant by the Company or any Person
acting on its behalf (as determined in the reasonable good faith judgment of the
Investor), in addition to any other remedy provided herein or in the other
Transaction Documents, the Investor shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise,
of such material, non-public information without the prior approval by the
Company; provided that the Company shall have failed to publicly disclose such
material, non-public information prior to such disclosure by the Investor. The
Investor shall not have any liability to the Company, any of its Subsidiaries,
or any of their respective directors, officers, employees, stockholders or
agents, for any such disclosure. The Company understands and confirms that the
Investor shall be relying on the foregoing covenants in effecting transactions
in securities of the Company.
(g)
Purchase Records. The Investor and the Company shall each maintain
records showing the remaining Available Amount at any given time and the dates
and Purchase Amounts for each Regular Purchase and Accelerated Purchase or shall use such other
method, reasonably satisfactory to the Investor and the Company.
-19-
(h)
Taxes. The Company shall pay any and all transfer, stamp or similar
taxes that may be payable with respect to the issuance and delivery of any
shares of Common Stock to the Investor made under this Agreement.
(i) No
Variable Rate Transactions. From the date of this Agreement until the
Maturity Date (irrespective of any earlier termination of this Agreement), the
Company shall be prohibited from effecting or entering into an agreement to
effect any issuance by the Company or any of its Subsidiaries of Common Stock or
Common Stock Equivalents (or a combination of units thereof) involving a
Variable Rate Transaction, other than in connection with an Exempt Issuance.
Variable Rate Transaction means a transaction in which the Company (i)
issues or sells any debt or equity securities that are convertible into,
exchangeable or exercisable for, or include the right to receive additional
shares of Common Stock or Common Stock Equivalents either (A) at a conversion
price, exercise price or exchange rate or other price that is based upon and/or
varies with the trading prices of or quotations for the Common Stock at any time
after the initial issuance of such debt or equity securities, or (B) with a
conversion, exercise or exchange price that is subject to being reset at some
future date after the initial issuance of such debt or equity security or upon
the occurrence of specified or contingent events directly or indirectly related
to the business of the Company or the market for the Common Stock (including,
without limitation, any full ratchet or weighted average anti-dilution
provisions) or (ii) enters into any agreement, including, but not limited to, an
equity line of credit, at-the-market offering or other continuous offering
or similar offering of Common Stock or Common Stock Equivalents, whereby the
Company may sell Common Stock or Common Stock Equivalents at a future determined
price. Exempt Issuance means the issuance of (a) shares of Common Stock
or options to employees, officers, directors or vendors of the Company pursuant
to any stock or option plan duly adopted for such purpose, by the Board of
Directors or a majority of the members of a committee of directors established
for such purpose, (b) securities upon the exercise or exchange of or conversion
of any Purchase Shares or Commitment Shares issued hereunder and/or other
securities exercisable or exchangeable for or convertible into shares of Common
Stock issued and outstanding on the date of this Agreement, provided that such
securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price
or conversion price of such securities, (c) securities issued pursuant to
acquisitions or strategic transactions approved by the Board of Directors or a
majority of the members of a committee of directors established for such
purpose, which acquisitions or strategic transactions can have a Variable Rate
Transaction component, provided that any such issuance shall only be to a Person
(or to the equity holders of a Person) which is, itself or through its
subsidiaries, an operating company or an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits
in addition to the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose of raising
capital or to an entity whose primary business is investing in securities, (d)
shares of Common Stock issued and sold by the Company pursuant to an
at-the-market offering of Common Stock through a registered broker-dealer
pursuant to an agreement between the Company and such registered broker-dealer
executed after the three (3) month anniversary of the Commencement Date, and (e)
the issuance of Common Stock upon the terms of the promissory note issued to
Goldman Sachs & Co.
(j)
Effective Registration Statement; Current Prospectus; Securities Law
Compliance. The Company shall use its reasonable best efforts to keep the
Registration Statement effective pursuant to Rule 415 promulgated under the
Securities Act, and to keep the Registration Statement and the Prospectus
current and available for issuances and sales of all of the Securities by the
Company to the Investor, and for the resale by the Investor, at all times until the earlier
of (i) the date on which the Investor shall have sold all the Securities and no
Available Amount remains under this Agreement and (ii) the earlier of (A) 90
days following the Maturity Date and (B) 180 Business Days following the
termination of this Agreement in accordance with Section 11 hereof (the
"Registration Period"). Without limiting the generality of the foregoing,
during the Registration Period, the Company shall (a) take all action necessary
to cause the Common Stock to continue to be registered as a class of securities
under Sections 12(b) or 12(g) of the Exchange Act, shall comply with its
reporting and filing obligations under the Exchange Act, and shall not take any
action or file any document (whether or not permitted by the Exchange Act) to
terminate or suspend such registration or to terminate or suspend its reporting
and filing obligations under the Exchange Act, and (b) prepare and file with the
SEC, at the Companys expense, such amendments (including, without limitation,
post-effective amendments) to the Registration Statement and such Prospectus
Supplements pursuant to Rule 424(b) under the Securities Act, in each case, as
may be necessary to keep the Registration Statement effective pursuant to Rule
415 promulgated under the Securities Act, and to keep the Registration Statement
and the Prospectus current and available for issuances and sales of all of the
Securities by the Company to the Investor, and for the resale of all of the
Securities by the Investor, at all times during the Registration Period (it
being hereby acknowledged and agreed that the Company shall prepare and file
with the SEC, at the Companys expense, immediately prior to the third
anniversary of the initial effective date of the Registration Statement (the
Renewal Date), a new Registration Statement relating to the Securities,
in a form satisfactory to the Investor and its counsel, and, if such
Registration Statement is not an automatic shelf registration statement on Form
S-3ASR, use its reasonable best efforts to cause such Registration Statement to
be declared effective within 180 days after the Renewal Date). The Investor
shall furnish to the Company such information regarding itself, the Securities
held by it and the intended method of distribution thereof as shall be
reasonably requested by the Company in connection with the preparation and
filing of any such amendment to the Registration Statement (or new Registration
Statement) or any such Prospectus Supplement, and shall otherwise cooperate with
the Company as reasonably requested by the Company in connection with the
preparation and filing of any such amendment to the Registration Statement (or
new Registration Statement) or any such Prospectus Supplement. The Company shall
comply with all applicable federal, state and foreign securities laws in
connection with the offer, issuance and sale of the Securities contemplated by
the Transaction Documents. Without limiting the generality of the foregoing,
neither the Company nor any of its officers, directors or affiliates will take,
directly or indirectly, any action designed or intended to stabilize or
manipulate the price of any security of the Company, or which would reasonably
be expected to cause or result in, stabilization or manipulation of the price of
any security of the Company.
-20-
(k)
Stop Orders. The Company shall advise the Investor promptly (but in no
event later than 24 hours) and shall confirm such advice in writing: (i) of the
Companys receipt of notice of any request by the SEC for amendment of or a
supplement to the Registration Statement, the Prospectus, any Prospectus
Supplement or for any additional information; (ii) of the Companys receipt of
notice of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement or prohibiting or suspending the use of the
Prospectus or any Prospectus Supplement, or of the Companys receipt of any
notification of the suspension of qualification of the Securities for offering
or sale in any jurisdiction or the initiation or contemplated initiation of any
proceeding for such purpose; and (iii) of the Company becoming aware of the
happening of any event, which makes any statement of a material fact made in the
Registration Statement, the Prospectus or any Prospectus Supplement untrue or
which requires the making of any additions to or changes to the statements then
made in the Registration Statement, the Prospectus or any Prospectus Supplement
in order to state a material fact required by the Securities Act to be stated
therein or necessary in order to make the statements then made therein (in the
case of the Prospectus or any Prospectus Supplement, in light of the
circumstances under which they were made) not misleading, or of the necessity to amend the
Registration Statement or supplement the Prospectus or any Prospectus Supplement
to comply with the Securities Act or any other law. The Company shall not be
required to disclose to the Investor the substance or specific reasons of any of
the events set forth in clauses (i) through (iii) of the immediately preceding
sentence, but rather, shall only be required to disclose that the event has
occurred. The Company shall not deliver to the Investor any Regular Purchase
Notice or Accelerated Purchase Notice, and the Investor shall not be obligated
to purchase any shares of Common Stock under this Agreement and agrees not to
resell any Securities covered by the Registration Statement and the Prospectus
through the Registration Statement and the Prospectus, during the continuation
or pendency of any of the events set forth in clauses (i) through (iii) above in
this Section 5(k). If at any time the SEC shall issue any stop order suspending
the effectiveness of the Registration Statement or prohibiting or suspending the
use of the Prospectus or any Prospectus Supplement, the Company shall use its
reasonable best efforts to obtain the withdrawal of such order at the earliest
possible time. The Company shall make available to the Investor, without charge,
a copy of any correspondence from the SEC or the staff of the SEC to the Company
or its representatives relating to the Registration Statement or the Prospectus,
as the case may be.
-21-
(l)
Amendments to Registration Statement; Prospectus Supplements. Except as
provided in this Agreement and other than periodic and current reports required
to be filed pursuant to the Exchange Act, the Company shall not file with the
SEC any amendment to the Registration Statement or any supplement to the Base
Prospectus that refers to the Investor, the Transaction Documents or the
transactions contemplated thereby (including, without limitation, any Prospectus
Supplement filed in connection with the transactions contemplated by the
Transaction Documents), in each case with respect to which (a) the Investor
shall not previously have been advised and afforded the opportunity to review
and comment thereon at least two (2) Business Days prior to filing with the SEC,
as the case may be, (b) the Company shall not have given due consideration to
any comments thereon received from the Investor or its counsel, or (c) the
Investor shall reasonably object, unless the Company reasonably has determined
that it is necessary to amend the Registration Statement or make any supplement
to the Prospectus to comply with the Securities Act or any other applicable law
or regulation, in which case the Company shall promptly (but in no event later
than 24 hours) so inform the Investor, the Investor shall be provided with a
reasonable opportunity to review and comment upon any disclosure referring to
the Investor, the Transaction Documents or the transactions contemplated
thereby, as applicable, and the Company shall expeditiously furnish to the
Investor a copy thereof. In addition, for so long as, in the reasonable opinion
of counsel for the Investor, the Prospectus is required to be delivered in
connection with any acquisition or sale of Securities by the Investor, the
Company shall not file any Prospectus Supplement with respect to the Securities
without furnishing to the Investor as many copies of such Prospectus Supplement,
together with the Prospectus, as the Investor may reasonably request.
(m)
Prospectus Delivery. The Company consents to the use of the Prospectus
(and of each Prospectus Supplement thereto) in accordance with the provisions of
the Securities Act and with the securities or blue sky laws of the
jurisdictions in which the Securities may be sold by the Investor, in connection
with the offering and sale of the Securities and for such period of time
thereafter as the Prospectus is required by the Securities Act to be delivered
in connection with sales of the Securities. The Company will make available to
the Investor upon reasonable request, and thereafter from time to time will
furnish to the Investor, as many copies of the Prospectus (and each Prospectus
Supplement thereto) as the Investor may reasonably request for the purposes
contemplated by the Securities Act within the time during which the Prospectus
is required by the Securities Act to be delivered in connection with sales of
the Securities. If during such period of time any event shall occur that in the
reasonable judgment of the Company and its counsel, or in the reasonable
judgment of the Investor and its counsel, is required to be set forth in the
Registration Statement, the Prospectus or any Prospectus Supplement or should be
set forth therein in order to make the statements made therein
(in the case of the Prospectus or any Prospectus Supplement, in light of the
circumstances under which they were made) not misleading, or if in the
reasonable judgment of the Company and its counsel, or in the reasonable
judgment of the Investor and its counsel, it is otherwise necessary to amend the
Registration Statement or supplement the Prospectus or any Prospectus Supplement
to comply with the Securities Act or any other applicable law or regulation, the
Company shall forthwith prepare and, subject to Section 5(l) above, file with
the SEC an appropriate amendment to the Registration Statement or an appropriate
Prospectus Supplement and in each case shall expeditiously furnish to the
Investor, at the Companys expense, such amendment to the Registration Statement
or such Prospectus Supplement, as applicable, as may be necessary to reflect any
such change or to effect such compliance. The Company shall have no obligation
to separately advise the Investor of, or deliver copies to the Investor of, the
SEC Documents, all of which the Investor shall be deemed to have notice of.
-22-
(n)
Integration. From and after the date of this Agreement, the Company shall
not sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in Section 2 of the Securities Act) of the
Company that would be integrated with the offer or sale of the Securities such
that the rules or regulations of the Principal Market would require stockholder
approval of this transaction prior to the closing of such other transaction
unless stockholder approval is obtained before the closing of such subsequent
transaction.
(o)
Principal Market Transactions.. The Investor covenants and agrees that it
shall offer or sell any Securities that may be issued pursuant to this Agreement
only in transactions executed on the Principal Market through a registered
broker-dealer located in the United States.
(p)
Use of Proceeds. The Company will use the net proceeds from the offering
as described in the Prospectus.
(q)
Other Transactions. During the term of this Agreement, the Company shall
not enter into, announce or recommend to its stockholders any agreement, plan,
arrangement or transaction in or of which the terms thereof would restrict,
materially delay, conflict with or impair the ability or right of the Company to
perform its obligations under the Transaction Documents, including, without
limitation, the obligation of the Company to deliver the Purchase Shares and the
Commitment Shares to the Investor in accordance with the terms of the
Transaction Documents.
(r)
Required Filings Relating to Purchases. To the extent required under the
Securities Act or under interpretations by the SEC thereof, as promptly as
practicable after the close of each of the Companys fiscal quarters (or on such
other dates as required under the Securities Act or under interpretations by the
SEC thereof), the Company shall prepare a Prospectus Supplement, which will set
forth the number of Purchase Shares sold to the Investor during such quarterly
period (or other relevant period), the purchase price for such Purchase Shares
and the net proceeds received by the Company from such sales, and shall file
such Prospectus Supplement with the SEC pursuant to Rule 424(b) under the
Securities Act (and within the time periods required by Rule 424(b) and Rule
430B under the Securities Act). If any such quarterly Prospectus Supplement is
not required to be filed under the Securities Act or under interpretations by
the SEC thereof, the Company shall disclose the information referenced in the
immediately preceding sentence in its annual report on Form 10-K or its
quarterly report on Form 10-Q (as applicable) in respect of the quarterly period
that ended immediately before the filing of such report in which sales of
Purchase Shares were made to the Investor under this Agreement, and file such
report with the SEC within the applicable time period required by the Exchange
Act. The Company shall not file any Prospectus Supplement pursuant to this
Section 5(r), and shall not file any report containing disclosure relating to such sales of Purchase Shares, unless a copy of
such Prospectus Supplement or disclosure has been submitted to the Investor a
reasonable period of time before the filing and the Investor has not reasonably
objected thereto (it being acknowledged and agreed that the Company shall not
submit any portion of any Form 10-K or Form 10-Q other than the specific
disclosure relating to any sales of Purchase Shares). The Company shall also
furnish copies of all such Prospectus Supplements to each exchange or market in
the United States on which sales of the Purchase Shares may be made as may be
required by the rules or regulations of such exchange or market, if applicable.
-23-
6.
TRANSFER AGENT INSTRUCTIONS.
On the date of this Agreement, the Company shall issue
irrevocable instructions to the Transfer Agent, and any subsequent transfer
agent, to issue the Purchase Shares and the Commitment Shares in accordance with
the terms of this Agreement (the Irrevocable Transfer Agent
Instructions). All Securities to be issued to or for the benefit of the
Investor pursuant to this Agreement shall be issued as DWAC Shares. The Company
warrants to the Investor that no instruction other than the Irrevocable Transfer
Agent Instructions referred to in this Section 6 will be given by the Company to
the Transfer Agent with respect to the Securities, and the Securities shall
otherwise be freely transferable on the books and records of the Company.
7.
CONDITIONS TO THE COMPANY'S RIGHT TO COMMENCE SALES OF SHARES OF COMMON
STOCK.
The right of the Company hereunder to commence sales of the
Purchase Shares on the Commencement Date is subject to the satisfaction or,
where legally permissible, the waiver of each of the following conditions:
(a) The
Investor shall have executed each of the Transaction Documents and delivered the
same to the Company;
(b) No
stop order with respect to the Registration Statement shall be pending or
threatened by the SEC;
(c) All
federal, state, local and foreign governmental laws, rules and regulations
applicable to the transactions contemplated by the Transaction Documents and
necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in
accordance with the terms thereof shall have been complied with, and all
consents, authorizations and orders of, and all filings and registrations with,
all federal, state, local and foreign courts or governmental agencies and all
federal, state, local and foreign regulatory or self-regulatory agencies
necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in
accordance with the terms thereof shall have been obtained or made, including,
without limitation, in each case those required under the Securities Act, the
Exchange Act, applicable state securities or Blue Sky laws or applicable rules
and regulations of the Principal Market or otherwise required by the SEC, the
Principal Market or any U.S. state or Canadian provincial securities regulators;
(d) No
statute, regulation, order, decree, writ, ruling or injunction shall have been
enacted, entered, promulgated, threatened or endorsed by any federal, state or
local court or governmental authority of competent jurisdiction which prohibits
the consummation of or which would materially modify or delay any of the
transactions contemplated by the Transaction Documents;
-24-
(e) All
Securities to be issued by the Company to the Investor under the Transaction
Documents shall have been approved for listing on the Principal Market in
accordance with the applicable rules and regulations of the Principal Market,
subject only to official notice of issuance; and
(f) The
representations and warranties of the Investor contained in this Agreement shall
be true and correct in all material respects as of the date hereof and as of the
Commencement Date.
8.
CONDITIONS TO THE INVESTOR'S OBLIGATION TO PURCHASE SHARES OF COMMON
STOCK.
The obligation of the Investor to buy Purchase Shares under
this Agreement is subject to the satisfaction or, where legally permissible, the
waiver of each of the following conditions on or prior to the Commencement Date
and, once such conditions have been initially satisfied, there shall not be any
ongoing obligation to satisfy such conditions after the Commencement Date:
(a) The
Company shall have executed each of the Transaction Documents and delivered the
same to the Investor;
(b) The
Common Stock shall be listed on the Principal Market, trading in the Common
Stock shall not have been within the last 365 days suspended by the SEC or the
Principal Market, and all Securities to be issued by the Company to the Investor
pursuant to this Agreement shall have been approved for listing on the Principal
Market in accordance with the applicable rules and regulations of the Principal
Market, subject only to official notice of issuance;
(c) The
Investor shall have received a written opinion of the Company's legal counsel,
dated as of the Commencement Date and in form and substance reasonably
satisfactory to the Investor;
(d) The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects (except to the extent that any such
representations and warranties are qualified as to materiality, in which case,
such representations and warranties shall be true and correct as so qualified)
as of the date hereof and as of the Commencement Date as though made at that
time (except for representations and warranties that speak as of a specific
date, which shall be true and correct in all material respects as of such date),
and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company
at or prior to the Commencement Date. The Investor shall have received a
certificate, executed by the CEO, President or CFO of the Company, dated as of
the Commencement Date, to the foregoing effect in the form attached hereto as
Exhibit A;
(e) The
Board of Directors and the Pricing Committee of the Company shall have adopted
resolutions substantially in the form attached hereto as Exhibit B
which shall be in full force and effect without any amendment or supplement
thereto as of the Commencement Date;
(f) As of
the Commencement Date, the Company shall have reserved out of its authorized and
unissued Common Stock, solely for the purpose of effecting purchases of Purchase
Shares hereunder, 21,147,410 shares of Common Stock;
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(g) The
Irrevocable Transfer Agent Instructions shall have been delivered to the
Companys Transfer Agent and acknowledged in writing by the Company and the
Company's Transfer Agent, and the Commitment Shares shall have been issued
directly to the Investor electronically as DWAC Shares;
(h) The
Company shall have delivered to the Investor a certificate evidencing the
incorporation and good standing of the Company in the State of Delaware issued
by the Secretary of State of the State of Delaware as of a date within ten (10)
Business Days of the Commencement Date;
(i) The
Company shall have delivered to the Investor a certified copy of the Certificate
of Incorporation as certified by the Secretary of State of the State of Delaware
within ten (10) Business Days of the Commencement Date;
(j) The
Company shall have delivered to the Investor a secretary's certificate executed
by the Secretary of the Company, dated as of the Commencement Date, in the form
attached hereto as Exhibit C;
(k) The
Registration Statement shall continue to be effective and no stop order with
respect to the Registration Statement shall be pending or threatened by the SEC.
The Company shall have a maximum dollar amount certain of Common Stock
registered under the Registration Statement which is sufficient to issue to the
Investor not less than (i) the full Available Amount worth of Purchase Shares
plus (ii) all of the Commitment Shares. The Current Report and the Initial
Prospectus Supplement each shall have been filed with the SEC as required
pursuant to Section 5(a), and copies of the Prospectus shall have been delivered
to the Investor in accordance with Section 5(m) hereof. The Prospectus shall be
current and available for issuances and sales of all of the Securities by the
Company to the Investor, and for the resale of all of the Securities by the
Investor. Any other Prospectus Supplements required to have been filed by the
Company with the SEC under the Securities Act at or prior to the Commencement
Date shall have been filed with the SEC within the applicable time periods
prescribed for such filings under the Securities Act. All reports, schedules,
registrations, forms, statements, information and other documents required to
have been filed by the Company with the SEC at or prior to the Commencement Date
pursuant to the reporting requirements of the Exchange Act shall have been filed
with the SEC within the applicable time periods prescribed for such filings
under the Exchange Act;
(l) No
Event of Default has occurred, or any event which, after notice and/or lapse of
time, would become an Event of Default has occurred;
(m) All
federal, state, local and foreign governmental laws, rules and regulations
applicable to the transactions contemplated by the Transaction Documents and
necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in
accordance with the terms thereof shall have been complied with, and all
consents, authorizations and orders of, and all filings and registrations with,
all federal, state, local and foreign courts or governmental agencies and all
federal, state, local and foreign regulatory or self-regulatory agencies
necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in
accordance with the terms thereof shall have been obtained or made, including,
without limitation, in each case those required under the Securities Act, the
Exchange Act, applicable state securities or Blue Sky laws or applicable rules
and regulations of the Principal Market, or otherwise required by the SEC, the
Principal Market or any U.S. state or Canadian provincial securities
regulators;
-26-
(n) No
statute, regulation, order, decree, writ, ruling or injunction shall have been
enacted, entered, promulgated, threatened or endorsed by any federal, state,
local or foreign court or governmental authority of competent jurisdiction which
prohibits the consummation of or which would materially modify or delay any of
the transactions contemplated by the Transaction Documents;
(o) No
action, suit or proceeding before any federal, state, local or foreign
arbitrator or any court or governmental authority of competent jurisdiction
shall have been commenced or threatened, and no inquiry or investigation by any
federal, state, local or foreign governmental authority of competent
jurisdiction shall have been commenced or threatened, against the Company, or
any of the officers, directors or affiliates of the Company, seeking to
restrain, prevent or change the transactions contemplated by the Transaction
Documents, or seeking material damages in connection with such transactions;
(p) On or
prior to the Commencement Date, the Company shall take all necessary action, if
any, and such actions as reasonably requested by the Investor, in order to
render inapplicable any control share acquisition, business combination,
stockholder rights plan or poison pill (including any distribution under a
rights agreement) or other similar anti-takeover provision under the Certificate
of Incorporation or the laws of the state of its incorporation which is or could
become applicable to the Investor as a result of the transactions contemplated
by this Agreement, including, without limitation, the Company's issuance of the
Securities and the Investor's ownership of the Securities; and
(q) The
Company shall have provided the Investor with the information requested by the
Investor in connection with its due diligence requests made prior to, or in
connection with, the Commencement, in accordance with the terms of Section 5(f)
hereof.
-27-
9.
INDEMNIFICATION.
In consideration of the Investor's execution and delivery of
the Transaction Documents and acquiring the Securities hereunder and in addition
to all of the Company's other obligations under the Transaction Documents, the
Company shall defend, protect, indemnify and hold harmless the Investor and all
of its affiliates, stockholders, officers, directors, employees and direct or
indirect investors and any of the foregoing Person's agents or other
representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the
Indemnitees) from and against any and all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and
expenses in connection therewith (irrespective of whether any such Indemnitee is
a party to the action for which indemnification hereunder is sought), and
including reasonable attorneys' fees and disbursements (the Indemnified
Liabilities), incurred by any Indemnitee as a result of, or arising out of,
or relating to: (a) any misrepresentation or breach of any representation or
warranty made by the Company in the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (b) any
breach of any covenant, agreement or obligation of the Company contained in the
Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, (c) any cause of action, suit or claim brought
or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance or enforcement of the Transaction Documents or
any other certificate, instrument or document contemplated hereby or thereby,
(d) any violation of the Securities Act, the Exchange Act, U.S. state securities
or Blue Sky laws or Canadian securities laws, or the rules and regulations of
the Principal Market in connection with the transactions contemplated by the
Transaction Documents by the Company or any of its Subsidiaries, affiliates,
officers, directors or employees, (e) any untrue statement or alleged untrue
statement of a material fact contained, or incorporated by reference, in the
Registration Statement or any amendment thereto or any omission or alleged omission to state therein, or in any document
incorporated by reference therein, a material fact required to be stated therein
or necessary to make the statements therein not misleading, or (f) any untrue
statement or alleged untrue statement of a material fact contained, or
incorporated by reference, in the Prospectus, or any omission or alleged
omission to state therein, or in any document incorporated by reference therein,
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that (I) the indemnity contained in clause
(c) of this Section 9 shall not apply to any Indemnified Liabilities which
directly and primarily result from the gross negligence or willful misconduct of
the Indemnitee, (II) the indemnity contained in clauses (d), (e) and (f) of this
Section 9 shall not apply to any Indemnified Liabilities to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
the Investor expressly for use in any Prospectus Supplement (it being hereby
acknowledged and agreed that the written information set forth on Exhibit
D attached hereto is the only written information furnished to the
Company by or on behalf of the Investor expressly for use in the Initial
Prospectus Supplement), if the Prospectus was timely made available by the
Company to the Investor pursuant to Section 5(l), (III) the indemnity contained
in clauses (d), (e) and (f) of this Section 9 shall not inure to the benefit of
the Investor to the extent such Indemnified Liabilities are based on a failure
of the Investor to deliver or to cause to be delivered the Prospectus made
available by the Company, if such Prospectus was timely made available by the
Company pursuant to Section 5(l), and if delivery of the Prospectus would have
cured the defect giving rise to such Indemnified Liabilities, and (IV) the
indemnity in this Section 9 shall not apply to amounts paid in settlement of any
claim if such settlement is effected without the prior written consent of the
Company, which consent shall not be unreasonably withheld, conditioned or
delayed. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. Payment under this indemnification shall be
made within thirty (30) days from the date Investor makes written request for
it. A certificate containing reasonable detail as to the amount of such
indemnification submitted to the Company by Investor shall be conclusive
evidence, absent manifest error, of the amount due from the Company to Investor.
If any action shall be brought against any Indemnitee in respect of which
indemnity may be sought pursuant to this Agreement, such Indemnitee shall
promptly notify the Company in writing, and the Company shall have the right to
assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Indemnitee. Any Indemnitee shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnitee, except to the extent that (i) the employment thereof has been
specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel
or (iii) in such action there is, in the reasonable opinion of such separate
counsel, a material conflict on any material issue between the position of the
Company and the position of such Indemnitee, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such
separate counsel.
-28-
10.
EVENTS OF DEFAULT.
An Event of Default shall be deemed to have occurred
at any time as any of the following events occurs:
(a) the
effectiveness of the Registration Statement registering the Securities lapses
for any reason (including, without limitation, the issuance of a stop order or
similar order) or the Registration Statement or the Prospectus is unavailable
for the sale by the Company to the Investor (or the resale by the Investor) of
any or all of the Securities to be issued to the Investor under the Transaction
Documents (including, without limitation, as a result of any failure of the
Company to satisfy all of the requirements for the use of a registration
statement on Form S-3 pursuant to the Securities Act for the offering and sale
of the Securities contemplated by this Agreement), and such lapse or
unavailability continues for a period of ten (10) consecutive Business Days or
for more than an aggregate of thirty (30) Business Days in any 365-day period;
(b) the
suspension of the Common Stock from trading or the failure of the Common Stock
to be listed on the Principal Market for a period of one (1) Business Day,
provided that the Company may not direct the Investor to purchase any shares of
Common Stock during any such suspension;
(c) the
delisting of the Common Stock from the NYSE MKT, provided, however, that the
Common Stock is not immediately thereafter trading on the New York Stock
Exchange, the NYSE Arca, The NASDAQ Capital Market, The NASDAQ Global Market,
The NASDAQ Global Select Market or the OTC Markets or any national comparable
U.S. market (or nationally recognized successor thereto);
(d) the
failure for any reason by the Transfer Agent to issue Purchase Shares to the
Investor within five (5) Business Days after the applicable Purchase Date or
Accelerated Purchase Date (as applicable) which the Investor is entitled to
receive such Securities;
(e) the
Company breaches any representation, warranty, covenant or other term or
condition under any Transaction Document if such breach could have a Material
Adverse Effect and except, in the case of a breach of a covenant which is
reasonably curable, only if such breach continues for a period of at least five
(5) Business Days after the Company obtains notice of such breach;
(f) if
any Person commences a proceeding against the Company pursuant to or within the
meaning of any Bankruptcy Law;
(g) if
the Company pursuant to or within the meaning of any Bankruptcy Law; (i)
commences a voluntary case, (ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property, or (iv) makes a
general assignment for the benefit of its creditors or is generally unable to
pay its debts as the same become due;
(h) a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (i) is for relief against the Company in an involuntary case, (ii)
appoints a Custodian of the Company or for all or substantially all of its
property, or (iii) orders the liquidation of the Company or any Subsidiary;
(i) if at
any time the Company is not eligible to transfer its Common Stock electronically
as DWAC Shares; or
-29-
(j) if at
any time after the Commencement Date, the Maximum Share Cap is reached (to the
extent such Maximum Share Cap is applicable pursuant to Section 2(e) hereof).
In addition to any other rights and remedies under applicable
law and this Agreement, so long as an Event of Default has occurred and is
continuing, or if any event which, after notice and/or lapse of time, would
become an Event of Default, has occurred and is continuing, or so long as the
Closing Sale Price is below the Floor Price, the Company shall not deliver to
the Investor any Regular Purchase Notice or Accelerated Purchase Notice, and the
Investor shall not purchase any shares of Common Stock under this Agreement.
11.
TERMINATION
This Agreement may be terminated only as follows:
(a) If
pursuant to or within the meaning of any Bankruptcy Law, the Company commences a
voluntary case or any Person commences a proceeding against the Company, a
Custodian is appointed for the Company or for all or substantially all of its
property, or the Company makes a general assignment for the benefit of its
creditors (any of which would be an Event of Default as described in Sections
10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate
without any liability or payment to the Company (except as set forth below)
without further action or notice by any Person.
(b) In
the event that the Commencement shall not have occurred on or before January 31,
2016, due to the failure to satisfy the conditions set forth in Sections 7 and 8
above with respect to the Commencement, either the Company or the Investor shall
have the option to terminate this Agreement at the close of business on such
date or thereafter without liability of any party to any other party (except as
set forth below); provided, however, that the right to terminate this Agreement
under this Section 11(b) shall not be available to any party if such party is
then in breach of any covenant or agreement contained in this Agreement or any
representation or warranty of such party contained in this Agreement fails to be
true and correct such that the conditions set forth in Section 7(f) or Section
8(d), as applicable, could not then be satisfied.
(c) At
any time after the Commencement Date, the Company shall have the option to
terminate this Agreement for any reason or for no reason by delivering notice (a
Company Termination Notice) to the Investor electing to terminate this
Agreement without any liability whatsoever of any party to any other party under
this Agreement (except as set forth below). The Company Termination Notice shall
not be effective until one (1) Business Day after it has been received by the
Investor.
(d) This
Agreement shall automatically terminate on the date that the Company sells and
the Investor purchases the full Available Amount as provided herein, without any
action or notice on the part of any party and without any liability whatsoever
of any party to any other party under this Agreement (except as set forth
below).
(e) If,
for any reason or for no reason, the full Available Amount has not been
purchased in accordance with Section 2 of this Agreement by the Maturity Date,
this Agreement shall automatically terminate on the Maturity Date, without any
action or notice on the part of any party and without any liability whatsoever
of any party to any other party under this Agreement (except as set forth
below).
Except as set forth in Sections 11(a) (in respect of an Event
of Default under Sections 10(f), 10(g) and 10(h)), 11(d) and 11(e), any
termination of this Agreement pursuant to this Section 11 shall be effected by
written notice from the Company to the Investor, or the
Investor to the Company, as the case may be, setting forth the basis for the
termination hereof. The representations and warranties and covenants of the
Company and the Investor contained in Sections 3, 4, 5, and 6 hereof, the
indemnification provisions set forth in Section 9 hereof and the agreements and
covenants set forth in Sections 10, 11 and 12, shall survive the
Commencement and any termination of this Agreement. No termination of this
Agreement shall (i) affect the Company's or the Investor's rights or obligations
under this Agreement with respect to pending Regular Purchases and Accelerated
Purchases, and the Company and the Investor shall complete their respective
obligations with respect to any pending Regular Purchases and Accelerated
Purchases under this Agreement or (ii) be deemed to release the Company or the
Investor from any liability for intentional misrepresentation or willful breach
of any of the Transaction Documents.
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12.
MISCELLANEOUS.
(a)
Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State
of Delaware shall govern all issues concerning the relative rights of the
Company and its stockholders. All other questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the other
Transaction Documents shall be governed by the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of Illinois. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of Chicago, for
the adjudication of any dispute hereunder or under the other Transaction
Documents or in connection herewith or therewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT
OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b)
Counterparts. This Agreement may be executed in two or more identical
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party; provided that a facsimile signature or signature
delivered by e-mail in a .pdf format data file shall be considered due
execution and shall be binding upon the signatory thereto with the same force
and effect as if the signature were an original signature.
(c)
Headings. The headings of this Agreement are for convenience of reference
and shall not form part of, or affect the interpretation of, this Agreement.
(d)
Severability. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
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(e)
Entire Agreement; Amendment. The Transaction Documents supersede all
other prior oral or written agreements between the Investor, the Company, their
affiliates and Persons acting on their behalf with respect to the subject matter
thereof, and this Agreement, the other Transaction Documents and the instruments
referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth
herein or therein, neither the Company nor the Investor makes any
representation, warranty, covenant or undertaking with respect to such matters.
The Company acknowledges and agrees that is has not relied on, in any manner
whatsoever, any representations or statements, written or oral, other than as
expressly set forth in the Transaction Documents. No provision of this Agreement
may be amended other than by a written instrument signed by both parties hereto.
(f)
Notices. Any notices, consents or other communications required or
permitted to be given under the terms of this Agreement must be in writing and
will be deemed to have been delivered: (i) upon receipt when delivered
personally; (ii) upon receipt when sent by facsimile (provided confirmation of
transmission is mechanically or electronically generated and kept on file by the
sending party); or (iii) one Business Day after deposit with a nationally
recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the Company:
|
U.S. Geothermal Inc. |
|
390 Parkcenter Blvd., Suite 250
|
|
Boise, ID 83706 |
|
Telephone: |
(208) 424-1027 |
|
Facsimile: |
(208) 424-1030 |
|
Attention: |
Kerry Hawkley |
With a copy to:
|
Dorsey & Whitney LLP |
|
701 Fifth Avenue, Suite 6100 |
|
Seattle, WA 98104 |
|
Telephone: |
(206) 903-8803 |
|
Facsimile: |
(206) 260-8917 |
|
Attention: |
Kimberley R. Anderson, Esq.
|
If to the Investor:
|
Lincoln Park Capital Fund, LLC |
|
440 North Wells, Suite 620 |
|
Chicago, IL 60654 |
|
Telephone: |
(312) 822-9300 |
|
Facsimile: |
(312) 822-9301 |
|
Attention: |
Josh Scheinfeld/Jonathan Cope
|
With a copy to:
|
Greenberg Traurig, LLP |
|
The MetLife Building |
|
200 Park Avenue |
|
New York, NY 10166 |
|
Telephone: |
(212) 801-9200 |
|
Facsimile: |
(212) 801-6400 |
|
Attention: |
Anthony J. Marsico,
Esq. |
-32-
If to the Transfer Agent:
|
Computershare Trust Company, N.A.
|
|
350 Indiana Street, Suite 750 |
|
Golden, CO 80401 |
|
Telephone: |
(303) 262-0714 |
|
Facsimile: |
(303) 262-0633 |
|
Attention: |
Kathy Kinard |
or at such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party three (3) Business Days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, and recipient facsimile number or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g)
Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns. The
Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Investor, including by merger or
consolidation. The Investor may not assign its rights or obligations under this
Agreement.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other
Person.
(i)
Publicity. The Investor shall have the right to approve before issuance
any press release, SEC filing or any other public disclosure made by or on
behalf of the Company whatsoever with respect to, in any manner, the Investor,
its purchases hereunder or any aspect of the Transaction Documents or the
transactions contemplated thereby; provided, however, that the Company shall be
entitled, without the prior approval of the Investor, to make any press release
or other public disclosure (including any filings with the SEC) with respect to
such transactions as is required by applicable law and regulations (including
the regulations of the Principal Market), so long as prior to making any such
press release or other public disclosure the Company and its counsel shall have
provided the Investor and its counsel with a reasonable opportunity to review
and comment upon, and shall have consulted with the Investor and its counsel on
the form and substance of, such press release or other public disclosure. The
Company agrees and acknowledges that its failure to fully comply with this
provision constitutes a Material Adverse Effect. The Company shall have the
right to approve before issuance any press release or any other public
disclosure made by or on behalf of the Investor whatsoever with respect to, in
any manner, the Company or any aspect of the Transaction Documents or the
transactions contemplated thereby; provided, however, that the Investor shall be
entitled, without the prior approval of the Company, to make any press release
or other public disclosure with respect to such transactions as is required by
applicable law and regulations, so long as prior to making any such press
release or other public disclosure the Investor and its counsel shall have
provided the Company and its counsel with a reasonable opportunity to review and
comment upon, and shall have consulted with the Company and its counsel
on the form and substance of, such press release or other public disclosure.
-33-
(j)
Further Assurances. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to consummate and make effective, as soon
as reasonably possible, the Commencement, and to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the other
transactions contemplated hereby.
(k) No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents
and warrants to the Investor that, except as disclosed in Schedule 4(y),
it has not engaged any financial advisor, placement agent, broker or finder in
connection with the transactions contemplated hereby. The Investor represents
and warrants to the Company that, as of the date of this Agreement, it has not
engaged any financial advisor, placement agent, broker or finder in connection
with the transactions contemplated hereby. The Company shall be responsible for
the payment of any fees or commissions, if any, of any financial advisor,
placement agent, broker or finder relating to or arising out of the transactions
contemplated hereby; provided, however, that the Company shall not be
responsible for the payment of any fees or commissions, if any, of any financial
advisor, placement agent, broker or finder engaged by the Investor in connection
with the transactions contemplated hereby, including, without limitation, any
broker-dealer engaged by the Investor after the date of this Agreement in
connection with any resale of the Securities by the Investor. The Company shall
pay, and hold the Investor harmless against, any liability, loss or expense
(including, without limitation, attorneys' fees and out of pocket expenses)
arising in connection with any claim for fees or commissions of any financial
advisor, placement agent, broker or finder engaged by the Company in connection
with the transactions contemplated hereby.
(l)
No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rules of strict construction will be applied against any party.
(m)
Remedies, Other Obligations, Breaches and Injunctive Relief. The parties
remedies provided in this Agreement, including, without limitation, the
Investors remedies provided in Section 9, shall be cumulative and in addition
to all other remedies available to the parties under this Agreement, at law or
in equity (including a decree of specific performance and/or other injunctive
relief), no remedy of any party contained herein shall be deemed a waiver of
compliance with the provisions giving rise to such remedy and nothing herein
shall limit any partys right to pursue actual damages for any failure by the
other party to comply with the terms of this Agreement. The parties acknowledge
that a breach by any party of its obligations hereunder will cause irreparable
harm to the non-breaching party and that the remedy at law for any such breach
may be inadequate. The parties therefore agree that, in the event of any such
breach or threatened breach, the non-breaching party shall be entitled, in
addition to all other available remedies, to an injunction restraining any
breach, without the necessity of showing economic loss and without any bond or
other security being required.
(n)
Enforcement Costs. If: (i) this Agreement is placed by the Investor in
the hands of an attorney for enforcement or is enforced by the Investor through
any legal proceeding; or (ii) an attorney is retained to represent the Investor
in any bankruptcy, reorganization, receivership or other proceedings affecting
creditors' rights and involving a claim under this Agreement; or (iii) an
attorney is retained to represent the Investor in any other proceedings
whatsoever in connection with this Agreement, then the Company shall pay to the
Investor, as incurred by the Investor, all reasonable costs and expenses
including attorneys' fees incurred in connection therewith, in addition to all
other amounts due hereunder.
-34-
(o)
Waivers. No provision of this Agreement may be waived other than in
a written instrument signed by the party against whom enforcement of such waiver
is sought. No failure or delay in the exercise of any power, right or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
* * *
* *
-35-
IN WITNESS WHEREOF, the Investor and the Company have
caused this Agreement to be duly executed as of the date first written above.
|
THE COMPANY: |
|
|
|
U.S. GEOTHERMAL INC. |
|
|
|
By: /s/ Kerry D. Hawkley |
|
Name: Kerry D. Hawkley |
|
Title: CFO and Secretary |
|
|
|
|
|
INVESTOR: |
|
|
|
LINCOLN PARK CAPITAL FUND, LLC |
|
BY: LINCOLN PARK CAPITAL, LLC |
|
BY: ROCKLEDGE CAPITAL CORPORATION |
|
|
|
By: /s/ Josh Scheinfeld |
|
Name: Josh Scheinfeld |
|
Title: President |
-36-
EXHIBITS
Exhibit A |
Form of Officers
Certificate |
Exhibit B |
Form of Resolutions of Board of Directors and
the Pricing Committee of the Company |
Exhibit C |
Form of Secretarys Certificate
|
Exhibit D |
Information About Investor Furnished to the
Company |
EXHIBIT A
FORM OF OFFICERS CERTIFICATE
This Officers Certificate (Certificate) is being
delivered pursuant to Section 8(d) of that certain Purchase Agreement dated as
of January 22, 2016, (the Purchase Agreement), by and between U.S.
GEOTHERMAL INC., a Delaware corporation (the Company), and
LINCOLN PARK CAPITAL FUND, LLC (the Investor). Terms used herein
and not otherwise defined shall have the meanings ascribed to them in the
Purchase Agreement.
The undersigned, _____________, _________________ of the
Company, hereby certifies as follows:
1. I am the
____________________ of the Company and make the statements contained in this
Certificate;
2. The representations and
warranties of the Company contained in the Purchase Agreement are true and
correct in all material respects (except to the extent that any of such
representations and warranties are qualified as to materiality, in which case,
such representations and warranties are true and correct as so qualified) as of
the date of the Purchase Agreement and as of the Commencement Date as though
made at that time (except for representations and warranties that speak as of a
specific date, in which case such representations and warranties are true and
correct in all material respects as of such date);
3. The Company has
performed, satisfied and complied in all material respects with the covenants,
agreements and conditions required by the Transaction Documents to be performed,
satisfied or complied with by the Company at or prior to the Commencement Date.
4. The Company has not
taken any steps, and does not currently expect to take any steps, to seek
protection pursuant to any Bankruptcy Law nor does the Company or any of its
Subsidiaries have any knowledge or reason to believe that its creditors intend
to initiate involuntary bankruptcy or insolvency proceedings. The Company is
financially solvent and is generally able to pay its debts as they become due.
IN WITNESS WHEREOF, I have hereunder signed my name on this ___
day of [___________], 2016.
The undersigned as Secretary of U.S. GEOTHERMAL INC., a
Delaware corporation, hereby certifies that _________________ is the duly
elected, appointed, qualified and acting _______________ of the Company and that
the signature appearing above is his genuine signature.
EXHIBIT B
FORM OF COMPANY RESOLUTIONS
FOR SIGNING PURCHASE
AGREEMENT
UNANIMOUS WRITTEN CONSENT OF
THE BOARD OF DIRECTORS OF
U.S. GEOTHERMAL INC.
_________
In accordance with the corporate
laws of the state of Delaware, the undersigned, being all of the directors of
U.S. GEOTHERMAL INC., a Delaware corporation (the Corporation) do
hereby consent to and adopt the following resolutions as the action of the Board
of Directors (the Board) for and on behalf of the Corporation and hereby
direct that this Consent be filed with the minutes of the proceedings of the
Board:
WHEREAS, in 2011 the Board
established a pricing committee (the Pricing Committee) consisting of three
directors, and now desires to reestablish and reconstitute it;
WHEREAS, there has been presented
to the Board a draft of the Purchase Agreement (the Purchase Agreement) by and
between the Corporation and Lincoln Park Capital Fund, LLC (Lincoln Park),
providing for the purchase by Lincoln Park of up to Ten Million Dollars
($10,000,000) (the Available Amount) of the Corporations common stock, $0.001
par value per share (the Common Stock), pursuant to the Corporations
registration statement on Form S-3 (Commission File No. 333-192611) (the
Registration Statement) covering the public offer and sale, from time to time,
of the Corporations equity capital, as may be designated and issued by the
Corporation from time to time, and a prospectus supplement to that certain base
prospectus included in the Registration Statement (the Supplement); and
WHEREAS, there has been presented
to the Board the Engagement Agreement (the Engagement Agreement) between the
Corporation and Drexel Hamilton, LLC (Drexel) dated January 15, 2016 providing
for the engagement by the Corporation of Drexel as its financial advisor in
connection with a placement of Common Stock from the Registration Statement to
Lincoln Park;
WHEREAS, after careful
consideration and review of the Purchase Agreement, the Engagement Agreement,
the documents respectively attached thereto and other factors deemed relevant by
the Board, the Board has determined that it is advisable and in the best
interests of the Corporation to engage in the transactions contemplated by the
Purchase Agreement and Engagement Agreement, including, but not limited to, the
issuance and sale of shares of Common Stock to Lincoln Park up to the Available
Amount under the Purchase Agreement (Purchase Shares).
Transaction Documents
NOW, THEREFORE, BE IT RESOLVED,
that the Purchase Agreement, the Engagement Agreement and the transactions
described therein are hereby approved and ratified and the Chief Executive
Officer, President and Chief Operating Officer, Chief Financial Officer and
Corporate Secretary, and Treasurer and Executive Vice President of the
Corporation (each such person, an Authorized Officer) are severally authorized
to execute and deliver the Purchase Agreement, the Engagement Agreement, and any
other agreements or documents contemplated thereby in accordance with the
resolutions contained herein, with such amendments, changes, additions and
deletions as any Authorized Officer may deem to be appropriate and approve on
behalf of, the Corporation, such approval to be conclusively evidenced by the
signature of an Authorized Officer thereon; and
FURTHER RESOLVED, that the Board
hereby reestablishes the Pricing Committee consisting of three directors, and
hereby appoints Dennis Gilles, Doug Glaspey, and Paul Larkin to serve on the
Pricing Committee until their successors, if any, shall be duly appointed or, if
earlier, their resignation, removal or disqualification from serving as members
of the Pricing Committee or as directors of the Corporation;
FURTHER RESOLVED, that the
Pricing Committee shall be authorized to exercise the authority of the Board in
approving the terms and conditions of any issuance and sale of Purchase Shares
to Lincoln Park from time to time in accordance with the Purchase Agreement
(including, without limitation, the number of Purchase Shares or amount in
Purchase Shares that Lincoln Park shall be directed to purchase from the
Corporation in any Regular Purchase Notice (as defined in the Purchase
Agreement, a Regular Purchase Notice) or Accelerated Purchase Notice (as
defined in the Purchase Agreement, an Accelerated Purchase Notice)) and to
authorize any Authorized Officer to complete, execute and deliver a Regular
Purchase Notice or Accelerated Purchase Notice from time to time in accordance
with such terms and conditions, as the Pricing Committee may deem necessary or
desirable from time to time, the completion, execution and delivery of such
Regular Purchase Notice or Accelerated Purchase Notice by such Authorized
Officer to be conclusive evidence that the Pricing Committee deems such terms
and conditions to be necessary or desirable;
FURTHER RESOLVED, that any two
members of the Pricing Committee shall be authorized to approve the terms and
conditions of any issuance and sale of Purchase Shares to Lincoln Park from time
to time in accordance with the Purchase Agreement, and that the Pricing
Committee shall be authorized to agree upon such terms and conditions, such
agreement to be binding on the Corporation to the same extent as if adopted by
resolutions of the Board; and
FURTHER RESOLVED, that the terms
and provisions of the Form of Transfer Agent Instructions (the Instructions)
are hereby approved and any Authorized Officer is authorized to execute and
deliver the Instructions (pursuant to the terms of the Purchase Agreement), with
such amendments, changes, additions and deletions as an Authorized Officer may
deem appropriate and approve on behalf of, the Corporation, such approval to be
conclusively evidenced by the signature of an Authorized Officer thereon; and
Issuance of Common Stock
FURTHER RESOLVED, that the
Corporation is hereby authorized to issue shares of Common Stock upon the
purchase of Purchase Shares up to the Available Amount under the Purchase
Agreement in accordance with the terms of the Purchase Agreement and that, upon
issuance, receipt of payment of the purchase price, and delivery of Purchase
Shares pursuant to the Purchase Agreement, such Purchase Shares will be duly
authorized, validly issued, fully paid and nonassessable with no personal
liability attaching to the ownership thereof; and
FURTHER RESOLVED, that the
Corporation shall initially reserve Twenty-One Million One Hundred Forty-Seven
Thousand Four Hundred Ten (21,147,410) shares of Common Stock for issuance as
Purchase Shares under the Purchase Agreement; and
- 2 -
FURTHER RESOLVED, that the
Corporation is also hereby authorized to issue Three Hundred Sixty-Two Thousand
One Hundred Fifteen (362,115) shares of Common Stock (subject to equitable
adjustment for any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction) (the Commitment Shares) in accordance with
the terms of the Purchase Agreement and calculated based on the Lincoln Park
Capital Fund, LLC Confidential Investment Term Sheet, dated January 6, 2016 (the
Term Sheet). As provided in the Term Sheet, the Corporation shall issue to
Lincoln Park Commitment Shares representing Two Hundred Twenty-Five Thousand
Dollars ($225,000) on the Closing Date, where the dollar value per Commitment
Share shall be equal to the average of the closing sale prices of the common
shares for the ten (10) consecutive business days prior to the date of the Term
Sheet. Upon issuance and delivery of the Commitment Shares pursuant to the
Purchase Agreement, the Commitment Shares will be duly authorized, validly
issued, fully paid and nonassessable with no personal liability attaching to the
ownership thereof; and
FURTHER RESOLVED, that the
Corporation shall initially reserve Three Hundred Sixty-Two Thousand One Hundred
Fifteen (362,115) shares of Common Stock for issuance as the Commitment Shares
under the Purchase Agreement; and
Regulatory and Exchange Filings
FURTHER RESOLVED, that the
officers of the Corporation are, and each of them hereby is, authorized and
directed to prepare and file with the Securities and Exchange Commission the
Supplement to that certain base prospectus included in the Registration
Statement; and
FURTHER RESOLVED, that the
officers of the Corporation are, and each of them hereby is, authorized and
directed, in connection with the Purchase Agreement, the Engagement Agreement
and the transactions contemplated by these resolutions, to take such actions and
to make such filings with the NYSE MKT LLC (the NYSE MKT) as such officers
deem necessary or appropriate upon advice of counsel to the Corporation to
comply with the guidelines, rules and regulations of the NYSE MKT; and
FURTHER RESOLVED, that any
resolutions required by the NYSE MKT to be adopted in connection with the
Purchase Agreement, the Engagement Agreement and the transactions contemplated
by these resolutions are hereby adopted and approved, and the Secretary of the
Corporation is hereby instructed to file such resolutions with the minutes of
the Corporation, and all of such resolutions are hereby incorporated and adopted
by reference to the same extent as if set forth in full herein; and
FURTHER RESOLVED, that any
resolutions required to be adopted by the Corporation by the various states in
which exemptions, qualifications or registrations may be sought in connection
with the Purchase Agreement, the Engagement Agreement and the transactions
contemplated by these resolutions are hereby adopted and approved, and the
Secretary of the Corporation is hereby instructed to file such resolutions with
the minutes of the Corporation, and all of such resolutions are hereby
incorporated and adopted by reference to the same extent as if set forth in full
herein; and
FURTHER RESOLVED, that the
officers of the Corporation are, and each of them hereby is, authorized and
directed, in connection with the Purchase Agreement, the Engagement Agreement
and transactions contemplated by these resolutions, to take such actions and to
make such filings with federal and state securities commissions or agencies as
such officers deem necessary or appropriate upon advice of counsel to the
Corporation to comply with federal and state securities laws; and
Approval of Actions
FURTHER RESOLVED, that the
authority of the transfer agent and registrar for the Common Stock shall extend
to and include Purchase Shares and the Commitment Shares authorized by these
resolutions and that such transfer agent and registrar is
hereby authorized to record and countersign, as transfer agent, and to deliver
to the officers of the Corporation, or pursuant to the directions thereof, the
certificates (or evidence of issuance in book entry form, if so requested by
such officer) evidencing the numbers of such Purchase Shares and Commitment
Shares issued in the name(s) as directed by such officer in writing, and such
transfer agent and registrar is hereby authorized and directed to register, as
registrar, certificates (or a statement of issuance in book entry form, if so
requested by such officer) for the number of such Purchase Shares and Commitment
Shares as directed by such officer; and
- 3 -
FURTHER RESOLVED, that, without
limiting the foregoing, the Authorized Officers are, and each of them hereby is,
authorized and directed to proceed on behalf of the Corporation and to take all
such steps as deemed necessary or appropriate, with the advice and assistance of
counsel, to cause the Corporation to consummate the agreements referred to
herein and to perform its obligations under such agreements; and
FURTHER RESOLVED, that the
Authorized Officers be, and each of them hereby is, authorized, empowered and
directed on behalf of and in the name of the Corporation, to take or cause to be
taken all such further actions and to execute and deliver or cause to be
executed and delivered all such further agreements, amendments, documents,
certificates, reports, schedules, applications, notices, letters and
undertakings and to incur and pay all such fees and expenses as in their
judgment shall be necessary, proper or desirable to carry into effect the
purpose and intent of any and all of the foregoing resolutions, and that all
actions heretofore taken by any officer or director of the Corporation in
connection with the transactions contemplated by the agreements described herein
are hereby approved, ratified and confirmed in all respects.
(signature page follows)
- 4 -
IN WITNESS WHEREOF, the Board has
executed and delivered this Consent on the dates shown below.
|
|
January ___, 2016 |
Dennis J. Gilles |
|
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January ___, 2016 |
Douglas J. Glaspey |
|
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January ___, 2016 |
Paul A. Larkin |
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January ___, 2016 |
Leland L. Mink |
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January ___, 2016 |
John H. Walker |
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|
being all of the directors of U.S. GEOTHERMAL INC.
- 5 -
UNANIMOUS WRITTEN CONSENT OF
THE PRICING COMMITTEE OF
THE BOARD OF DIRECTORS OF
U.S. GEOTHERMAL INC.
________
The undersigned, being all of the
members of the Pricing Committee (the Pricing Committee) of the Board of
Directors (the Board) of U.S. Geothermal Inc., a Delaware corporation (the
Corporation), acting by written consent without a meeting pursuant to Section
141(f) of the Delaware General Corporation Law, do hereby consent to the
adoption of the following resolutions and the taking of the actions contemplated
thereby, and direct that this consent be filed with the minutes of the
proceedings of the Pricing Committee:
WHEREAS, the Board has approved
the Purchase Agreement (the Purchase Agreement) by and between the Corporation
and Lincoln Park Capital Fund, LLC (Lincoln Park), providing for the purchase
by Lincoln Park of up to Ten Million Dollars ($10,000,000) (the Available
Amount) of the Corporations common stock, $0.001 par value per share (the
Common Stock), pursuant to the Corporations registration statement on Form
S-3 (Commission File No. 333-192611) (the Registration Statement) covering the
public offer and sale, from time to time, of the Corporations equity capital,
as may be designated and issued by the Corporation from time to time, and a
prospectus supplement to that certain base prospectus included in the
Registration Statement; and
WHEREAS, the Board has
authorized the Pricing Committee to exercise the authority of the Board in
approving the terms and conditions of any issuance and sale of shares of Common
Stock (Purchase Shares) to Lincoln Park from time to time in accordance with
the Purchase Agreement (including, without limitation, the number of Purchase
Shares or amount in Purchase Shares that Lincoln Park shall be directed to
purchase from the Corporation in any Purchase Notice (as defined in the Purchase
Agreement, a Purchase Notice) or Accelerated Purchase Notice (as defined in
the Purchase Agreement, an Accelerated Purchase Notice)) and to authorize the
Chief Executive Officer, President and Chief Operating Officer, Chief Financial
Officer and Corporate Secretary, and Treasurer and Executive Vice President of
the Corporation (each such person, an Authorized Officer) to complete, execute
and deliver a Purchase Notice or Accelerated Purchase Notice from time to time
in accordance with such terms and conditions as the Pricing Committee may deem
necessary or desirable from time to time, the completion, execution and delivery
of such Purchase Notice or Accelerated Purchase Notice by such Authorized
Officer to be conclusive evidence that the Pricing Committee deems such terms
and conditions to be necessary or desirable.
NOW, THEREFORE, LET IT BE:
RESOLVED, that any Authorized
Officer shall be authorized to exercise the authority of the Pricing Committee
in approving the terms and conditions of any issuance and sale of Purchase
Shares to Lincoln Park from time to time in accordance with the Purchase
Agreement (including, without limitation, the number of Purchase Shares or
amount in Purchase Shares that Lincoln Park shall be directed to purchase from
the Corporation in any Purchase Notice or Accelerated Purchase Notice), and any
Authorized Officer shall be authorized to complete, execute and deliver a
Purchase Notice or Accelerated Purchase Notice from time to time in accordance
with such terms and conditions, as such Authorized Officer may deem necessary or
desirable from time to time, the completion, execution and delivery of such Purchase Notice or Accelerated Purchase Notice
by such Authorized Officer to be conclusive evidence that the Pricing Committee
deems such terms and conditions to be necessary or desirable; provided, however,
that any sale of Purchase Shares under the Purchase Agreement (excluding the
sale from the Initial Purchase, as defined in the Purchase Agreement, the
Initial Purchase) shall be subject to the terms and conditions set forth in
the table below:
|
Price per Purchase Share |
Aggregate gross sales proceeds under
Purchase Agreement |
(1) |
If the Purchase Price (as defined in the
Purchase Agreement, the Purchase Price) or Accelerated Purchase Price
(as defined in the Purchase Agreement, the Accelerated Purchase Price)
is less than $0.60 per share |
Aggregate gross sales proceeds under the
Purchase Agreement (excluding any proceeds from the Initial Purchase)
shall not exceed $2,000,000 |
(2) |
If the Purchase Price or Accelerated Purchase
Price is equal to or greater than $0.60 per share but less than $0.80 per
share |
Aggregate gross sales proceeds under the
Purchase Agreement (excluding any proceeds from the Initial Purchase)
shall not exceed $4,000,000; provided, however, that such amount shall
include any sales of Common Stock under row (1) above at a price of less
than $0.60 per share |
(3) |
If the Purchase Price or Accelerated Purchase
Price is equal to or greater than $0.80 per share |
Aggregate gross sales proceeds under the
Purchase Agreement (excluding any proceeds from the Initial Purchase)
shall not exceed $10,000,000; provided, however, that such amount shall
include any sales of Common Stock under rows (1) and (2) above at a price
of less than $0.60 per share and at a price of equal to or greater than
$0.60 per share but less than $0.80 per share, respectively
|
Provided further, that the approval of the terms and conditions
in the issuance and sale of Purchase Shares to Lincoln Park from time to time in
accordance with the Purchase Agreement shall not cause a beneficial ownership by
Lincoln Park of greater than 9.99%, or the trading of greater than 19.99%, of
the Corporations aggregate outstanding common stock.
FURTHER RESOLVED, that the
Authorized Officers be, and each of them hereby is, authorized, empowered and
directed on behalf of and in the name of the Corporation, to take or cause to be
taken all such further actions and to execute and deliver or cause to be
executed and delivered all such further agreements, amendments, documents,
certificates, reports, schedules, applications, notices, letters and
undertakings and to incur and pay all such fees and expenses as in their
judgment shall be necessary, proper or desirable to carry into effect the
purpose and intent of any and all of the foregoing resolutions, and that all
actions heretofore taken by any officer or director of the Corporation in
connection with the transactions contemplated by the agreements described herein
are hereby approved, ratified and confirmed in all respects.
(signature page follows)
- 2 -
This Unanimous Written Consent may be executed in several
counterparts, each of which when so executed shall be deemed to be an original
and such counterparts, taken together, shall constitute one and the same
instrument. A signed counterpart of this Unanimous Written Consent provided by
way of facsimile or other electronic transmission shall be as binding upon the
parties as an originally signed counterpart.
IN WITNESS WHEREOF, the
undersigned members of the Pricing Committee have duly executed this Unanimous
Written Consent.
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Dennis J. Gilles |
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January ____, 2016 |
Douglas J. Glaspey |
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January ____, 2016 |
Paul A. Larkin |
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EXHIBIT C
FORM OF SECRETARYS CERTIFICATE
This Secretarys Certificate (Certificate) is being delivered
pursuant to Section 8(j) of that certain Purchase Agreement dated as of January
22, 2016, (the Purchase Agreement), by and between U. S. GEOTHERMAL
INC., a Delaware corporation (the Company) and LINCOLN PARK CAPITAL
FUND, LLC (the Investor). Terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Purchase Agreement.
The undersigned, ___________, Secretary of the Company, hereby
certifies as follows:
1. I am the Secretary of
the Company and make the statements contained in this Certificate.
2. Attached hereto as
Exhibit A and Exhibit B are true, correct and complete copies of
the Companys Bylaws, as amended to date (Bylaws), and Certificate of
Incorporation, as amended to date (Certificate of Incorporation),
respectively, in each case, as amended through the date hereof, and no action
has been taken by the Company, its directors, officers or stockholders, in
contemplation of any further amendment relating to or affecting the Bylaws or
Certificate of Incorporation.
3. Attached hereto as
Exhibit C are true, correct and complete copies of the resolutions duly
adopted by the Board of Directors of the Company (the Board) on
[_____________], 2016 and the Pricing Committee of the Board in compliance with
the Bylaws, Certificate of Incorporation and the Delaware General Corporation
Law. Such resolutions have not been amended, modified or rescinded and remain in
full force and effect and such resolutions are the only resolutions adopted by
the Board, or any committee thereof, or the stockholders of the Company relating
to or affecting (i) the entering into and performance of the Purchase Agreement,
or the issuance, offering and sale of the Purchase Shares and the Commitment
Shares and (ii) and the performance of the Company of its obligation under the
Transaction Documents as contemplated therein.
4. As of the date hereof,
the authorized, issued and reserved capital stock of the Company is as set forth
on Exhibit D hereto.
IN WITNESS WHEREOF, I have hereunder signed my name on
this ___ day of [____________], 2016.
The undersigned as _______________ of the Company, hereby
certifies that _________________ is the duly elected, appointed, qualified and
acting Secretary of the Company, and that the signature appearing above is his
genuine signature.
EXHIBIT D
Information About The Investor Furnished To The Company By
The Investor
Expressly For Use In Connection With The Initial Prospectus
Supplement
Information With Respect to Lincoln Capital
As of the date of the Purchase Agreement, Lincoln Park Capital
Fund, LLC, beneficially owned 2,463,810 shares of our common stock. Josh
Scheinfeld and Jonathan Cope, the Managing Members of Lincoln Park Capital, LLC,
the manager of Lincoln Park Capital Fund, LLC, are deemed to be beneficial
owners of all of the shares of common stock owned by Lincoln Park Capital Fund,
LLC. Messrs. Cope and Scheinfeld have shared voting and investment power over
the shares being offered under the prospectus supplement filed with the SEC in
connection with the transactions contemplated under the Purchase Agreement.
Lincoln Park Capital, LLC is not a licensed broker dealer or an affiliate of a
licensed broker dealer.
390 E Parkcenter Blvd, Ste 250, Boise, ID
83706 |
Tel:
208.424.1027 |
Fax: 208.424.1030 |
January 25, 2016
TRADING SYMBOL:
NYSE MKT: HTM
U.S. GEOTHERMAL INC. REESTABLISHES SHARE PURCHASE
AGREEMENT
WITH LINCOLN PARK CAPITAL FUND, LLC
BOISE, IDAHO, January 25, 2016 U.S. Geothermal Inc.
(NYSE MKT: HTM) (the Company), a leading and profitable renewable
energy company focused on the development, production and sale of electricity
from geothermal energy, announced today that it has signed a new purchase
agreement (the Purchase Agreement) with Lincoln Park Capital Fund, LLC
(LPC), a Chicago-based institutional investor. It may provide up to $10
million of equity capital over the agreements 30-month term.
Following the year-end, management determined it would be
prudent to enter into a new LPC facility. The Companys first Purchase Agreement
with LPC, was entered into on May 21, 2012 and expired in 2015. Under the new
Purchase Agreement, at the companys sole discretion, LPC will invest up to $10
million of equity capital over a 30 month period. The agreement provides for an
initial sale of $650,000 of shares of common stock upon closing. Net proceeds
from LPCs investments will be used to cover a portion of the cost of the recent
acquisition of the Goldman Sachs ownership interest of the Raft River project,
development of our geothermal projects and for general corporate purposes.
The LPC facility will enable us to raise capital, at market
prices, on an as needed basis, which further enhances our liquidity, stated
Dennis Gilles, Chief Executive Officer of U.S. Geothermal Inc.
During the 30 month term of the Purchase Agreement, the
Company, at its sole discretion, has the right to sell to LPC up to $10 million
of its common stock, in amounts as described in the Purchase Agreement and
subject to certain conditions. Under the Purchase Agreement, there are no upper
limits to the price LPC may pay to purchase the Companys common stock. LPC has
no right to require any sales by U.S. Geothermal, but is obligated under the
agreement to purchase the Companys common stock, as U.S. Geothermal directs in
its sole discretion as provided in the agreement. The purchase price of the
Company shares related to any future investments will be based on the prevailing
market prices of the Companys shares immediately preceding the notice of sale
to LPC. LPC has agreed not to cause or engage in any manner whatsoever, any
direct or indirect short selling or hedging of the Companys shares of common stock. In consideration for entering
into the Purchase Agreement, the Company has issued shares of common stock to
LPC as a commitment fee. The Purchase Agreement may be terminated by the Company
at any time, at its sole discretion, without any cost or penalty.
Website:
www.usgeothermal.com |
NYSE
MKT: HTM |
A more detailed description of the purchase agreement is set
forth in the Companys Current Report on Form 8-K filed with the SEC on January
25, 2016, which the Company encourages you to carefully review.
The financing is being conducted pursuant to an effective shelf
registration statement filed with the SEC. A prospectus supplement and the
accompanying prospectus describing the terms of the financing have been filed
with the SEC. Electronic copies of the prospectus supplement and accompanying
prospectus are available on the SEC's website at www.sec.gov or by request from
the Company at (208) 424-1027.
This press release does not constitute an offer to sell or a
solicitation of an offer to buy the securities in this offering, nor will there
be any sale of these securities in any jurisdiction in which such offer,
solicitation or sale are unlawful prior to registration or qualification under
securities laws of any such jurisdiction.
About U.S. Geothermal Inc.:
U.S. Geothermal Inc. is a leading and profitable renewable
energy company focused on the development, production and sale of electricity
from geothermal energy. The company is currently operating geothermal power
projects at: Neal Hot Springs, Oregon, San Emidio, Nevada and Raft River, Idaho
for a total power generation of approximately 45 MWs. The company is also
developing projects at: the Geysers, California; a second phase project at San
Emidio, Nevada; the El Ceibillo project located near Guatemala City, Guatemala;
and at Crescent Valley, Nevada. U.S. Geothermals growth strategy is to reach
200 MWs of generation by 2020 through a combination of internal development and
strategic acquisitions.
About Lincoln Park Capital Fund, LLC:
LPC is an institutional investor headquartered in Chicago,
Illinois. LPCs experienced professionals manage a portfolio of investments in
public and private entities. These investments are in a wide range of companies
and industries emphasizing life sciences, specialty financing, energy and
technology. LPCs investments range from multiyear financial commitments to fund
growth to special situation financings to long-term strategic capital offering
companies certainty, flexibility and consistency. For more information visit www.LincolnParkCapital.com.
FOR ADDITIONAL INFORMATION PLEASE CONTACT:
Saf Dhillon - Investor Relations |
|
U.S. Geothermal Inc. |
Please visit our Website at:
http://www.usgeothermal.com |
Tel: 866-687-7059 |
|
U.S. Geothermal Inc. |
390 E Parkcenter Blvd, Ste 250, Boise, ID
83706 |
208-424-1027 |
|
www.usgeothermal.com |
|
Fax: 208-424-1030
saf@usgeothermal.com
The information provided in this news release may contain
forward-looking statements within the definition of the Safe Harbor provisions
of the US Private Securities Litigation Reform Act of 1995. Readers are
cautioned to review the risk factors identified by the company in its filings
with US and Canadian securities agencies. All statements, other than statements
of historical fact, included herein, without limitation, statements relating to
the future operating or financial performance of U.S. Geothermal, are
forward-looking statements. Forward-looking statements are frequently, but not
always, identified by words such as "expects", "anticipates", "believes",
"intends", "estimates", "potential", "possible", and similar expressions, or
statements that events, conditions, or results "will", "may", "could", or
"should" occur or be achieved. These forward-looking statements may include
statements regarding cash flow and liquidity, the ability to comply with the
terms of the Purchase Agreement, growth strategy and timing; or other statements
that are not statements of fact. Forward-looking statements involve various
risks and uncertainties. There can be no assurance that such statements will
prove to be accurate, and actual results and future events could differ
materially from those anticipated in such statements. Important factors that
could cause actual results to differ materially from U.S. Geothermal's
expectations include the uncertainties involving the availability of financing
in the debt and capital markets; uncertainties involved in the interpretation of
results of well tests; the need for cooperation of government agencies in the
development and operation of properties; the need to obtain permits and
governmental approvals; risks of construction; unexpected cost increases, which
could include significant increases in estimated capital and operating costs;
and other risks and uncertainties disclosed in U.S. Geothermal's Annual Report
on Form 10-K for the year ended December 31, 2014 filed with the United States
Securities and Exchange Commission and Canadian securities regulatory
authorities and in other U.S. Geothermal reports and documents filed with
applicable securities regulatory authorities from time to time. Forward-looking
statements are based on managements expectations, beliefs and opinions on the
date the statements are made. U.S. Geothermal Inc. assumes no obligation to
update forward-looking statements if managements expectations, beliefs, or
opinions, or other factors, should change.
The NYSE MKT does not accept responsibility for the adequacy of
this release.
U.S. Geothermal Inc. |
390 E Parkcenter Blvd, Ste 250, Boise, ID
83706 |
208-424-1027 |
|
www.usgeothermal.com |
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